Tentative Rulings Department 53 of California April 26, 2000




                                                                             
                                 NOTICE:                                     
                                                                             
      To request limited oral argument on any matter on this                
     calendar, you must call the Court at (916) 874-7858                    
     (Department 53) by 4:30 p.m. the day before this hearing               
     and advise opposing counsel. Local rule 31(h). If no call              
     is made the tentative ruling becomes the order of the                  
     court.                                                                  
                                                                             


                               TENTATIVE RULINGS                         

                                 Department  53
                          Superior Court of California              
                                  800 H Street                              
                              JOHN R. LEWIS, Judge
                                J. INGRAM, Clerk
                              L. SWEEZER, Bailiff
                             April 26, 2000, 09:00

     ITEM  1  00AS00003 GINA SMITH VS. VALENTINE CONSTRUCTION, INC., ET AL          
              Nature of Proceeding: MOTION TO COMPEL                   
              Filed By: DITORA, DAVID L.                               


          Petitioners/Defendants' petition to compel arbitration, and for a  
     related stay of the action, is GRANTED.  The agreement is neither       
     procedurally nor substantively unconscionable.  The arbitration clause  
     is clearly set forth in a separate paragraph on page 7 of the employment
     application and is preceeded by the instruction to "please read         
     carefully, initial each paragraph, and sign below."                     
     Respondent/Plaintiff's initials appear thereon, and it must be presumed 
     that she understood what she read and signed.                           
          Respondent has not been forced to relinquish substantive rights by 
     agreeing to their resolution in an arbitral forum.  The arbitration     
     clause does not give the employer greater rights than respondent.       
     Arbitration pursuant to the rules of the American Arbitration           
     Association is not unconscionable because those rules provide for       
     limited discovery and the sharing of the cost of the arbitrator.        
     Respondent also argues that she is in an unequal bargaining position.   
     However, "the cases uniformly agree that a compulsory predispute        
     arbitration agreement is not rendered unenforceable  just because it is 
     required as a condition of employment or offered on a "take it or leave 
     it" basis....(U)nder both federal and state law, an employee's rights to
     a jury trial and a judicial forum can be validly waived by agreement,   
     even where the waiver is required as a condition of employment."        
     (Lagatree v Luce, Forward, Hamilton & Scripps (1999) 74 Cal.App.4th     
     1105, 1127.)                                                            
         Petitioners/Defendants shall submit an appropriate formal order.    
                                                                             



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     April 26, 2000
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     ITEM  2  00CS00329 LAW OFFICES OF STEVEN J. MELMET, ET AL VS. ALL CLAIMANTS    
              Nature of Proceeding:                                                             
              Filed By:                                


         Drop from calendar. This matter was calendered in error for this    
     date. Hearing per the Court's notice is set for June 27, 2000.          

     ***

     ITEM  3  00CS00419 IN RE:  DANIEL PEREZ ARRIAGA                                
              Nature of Proceeding: PETITION FOR CHANGE OF NAME        
              Filed By: ARRIAGA, BENJAMIN & MARIA                               


          GRANTED on condition proof of publication is filed by 9:00 AM of   
     the date of the hearing.                                                

     ***

     ITEM  4  98AS01362 ANTHONY LUCAS VS. DALE F. REDING, ET AL                     
              Nature of Proceeding: MOTION FOR NEW TRIAL               
              Filed By: BUDIN, JERRY N.                               


         Plaintiff's motion for new trial is DENIED.  It is based on his     
     contention that the issue of consent was not raised in defendant's      
     motion for summary judgment.  The issue was whether or not a battery    
     occurred.  Defendant maintained there was no contact and, inter alia,   
     submitted deposition testimony from Plaintiff where he stated he        
     recalled no contact.  In opposition, Plaintiff submitted a declaration  
     describing contact.  Unfortuntately for Plaintiff his own declaration   
     showed consensual contact and his attempts to show coercion failed.     
         The basic principle of Juge v County of Sacramento is applicable.   
     Plaintiff attempts to distinguish it by arguing that it was the evidence
     submitted by the moving party in Juge which supported a different legal 
     theory on which to grant the motion; whereas here, the evidence on which
     the court found consent was supplied in the opposition.  Evidence is    
     evidence.  The court is entitled to consider ALL of the evidence set    
     forth in the papers.  (Villa vl McFerren (1995) 35 Cal.Ap/p.4th 733,    
     749.)   Plaintiff may not have realized the implications of what he     
     submitted; but that does not compel the conclusion that he must now be  
     given an opportunity to further explain his declaration (i.e. show the  
     contact was not consensual).                                            
         This minute order is effective immediately.  No formal order is     
     required the tentative ruling providing sufficient notice.              



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     April 26, 2000
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     ITEM  5  98AS01840 TIM ALVORD, ET AL VS. WAL-MART STORES, INC.                 
              Nature of Proceeding: MOTION TO FILE AMENDED COMPLAINT   
              Filed By: DRISCOLL, DONALD P.                               


          Dropped. The court interprets the ruling of Judge Park on April 19,
     2000 as staying all aspects of this action except for discovery until   
     there is a final judment on appeal as to Plaintiffs Egger and Willis.   

     ***

     ITEM  6  98AS03371 BARBARA YEADON, ET AL VS. WAL-MART STORES, INC., ET AL      
              Nature of Proceeding: MOTION TO SUBSTITUTE REPRESENTATIVE                         
              Filed By: ARNOLD, CLAYEO C.                               


          Plaintiff's motion to substitute the personal representative of the
     decedent's estate is GRANTED.  Plaintiff has complied with Probate Code 
     Section 9370 and CCP Section 377.41.                                    
          Defendant argues that CCP 395.1 requires the action be venued in   
     San Diego.  This may be the case when the only defendant is the personal
     representative of decedent.  But there is more than one defendant in    
     this action. Moreover, if Defendant believes a change of venue is       
     appropriate, such a motion must be made in Department 47.               
         This minute order is effective immediately.  No formal order is     
     required, the tentative ruling providing sufficient notice.             

     ***

     ITEM  7  99AS00093 LOY GOODWIN, ET AL VS. HOA THI DANG NGUYEN, ET AL           
              Nature of Proceeding: MOTION TO STRIKE                   
              Filed By: LONG, ERNEST A.                               


          Defendants' motion to strike paragraphs 11 and 12 of the complaint 
     is unopposed and is GRANTED.  In these paragraphs Plaintiffs seek to    
     recover damages which are specifically not allowed under CCP Section    
     377.34.                                                                 
          This minute order is effective immediately.  No formal order is    
     required, the tentative ruling being sufficient notice.                 



     Department 53
     April 26, 2000
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     ITEM  8  99AS00592 PEOPLE OF THE ST OF CALIF VS. ALDEN JONATHON APPLETON, ET AL
              Nature of Proceeding: MOTION FOR PRELIMINARY INJUNCTION  
              Filed By: BROWN, TERENCE M.                               


     Continued to 05/03/2000

                                                                             
                                                                             

     ***

     ITEM  9  99AS01463 LEO BURNS VS. GRANT JOINT UNION HIGH SCHOOL DISTRICT        
              Nature of Proceeding: MOTION TO COMPEL/SANCTIONS         
              Filed By: MCCOY, GREGORY L.                               


     Dropped. 

                                                                             
                                                                             

     ***

     ITEM 10  99AS01765 J. CHAUNCEY HAYES VS. PAUL I NELSON                         
              Nature of Proceeding: MOTION TO COMPEL                   
              Filed By: CHRISTIANSON, JAMES J.                               


     Dropped. 

         Moving counsel has advised the Court that the parties have resolved 
     the discovery dispute after further meet and confer efforts.            

     ***

     ITEM 11  99AS05179 COUNTY OF SACRAMENTO VS. SHAHROKH AHMADI, ET AL             
              Nature of Proceeding: ORDER TO SHOW CAUSE RE CONTEMPT                             
              Filed By: FLOYD, KEITH W.                               


     Continued to 06/26/2000

                                                                             
                                                                             



     Department 53
     April 26, 2000
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     ITEM 12  99AS05471 ROBERT FOWLER VS. COUNTY OF SACRAMENTO, ET AL               
              Nature of Proceeding: MOTION TO COMPEL (2)               
              Filed By: CONLAN, MICHAEL J.                               


          The motion of Defendant Lucas Truck and Equipment Sales, Inc. to   
     compel further responses to production has been dropped. Its motion to  
     compel further answers to form interrogatories is GRANTED.              
          The motion is not untimely.  Plaintiff gave Defendant an extension 
     to February 27 to file a motion to compel further answers.  However, on 
     February 10, Plaintiff provided further answers.  Forty-five days from  
     February 10 is March 26.  This motion was filed on March 24.            
          The further answers are still inadequate.  The objection that      
     Plaintiff would be required to make a compilation or summary and that   
     Defendant can obtain the  information by subpoenaing his records is not 
     well-taken. In addition the answer "n/a" is not appropriate.  To the    
     extent Plaintiff has answered the subject interrogatories, his answers  
     are vague and incomplete.                                               
          Compliance shall be by May 8, 2000.  Sanctions against Plaintiff   
     and in favor of Defendant are ordered in the amount of $383.00.         
          This minute order is effective immediately.  No formal order is    
     required, the tentative ruling providing sufficient notice.             

     ***

     ITEM 13  99AS06769 NANCY BALHORN, ET AL VS. MOTHER LODE VILLAGE OWNERS ASS.ETAL
              Nature of Proceeding: MOTION FOR PRELIMINARY INJUNCTION                           
              Filed By: TAYLOR D. MITCHELL                               


         Plaintiffs' Nancy Balhorn and Frank Rotchford Motion for Preliminary
     Injunction is DENIED.                                                   
                                                                             
         Plaintiffs' Notice of Motion identifies 10 requested preliminary    
     injunctions against five named individual defendants, the Mother Lode   
     Village Owners Association, and the Gold River Community Association.   
                                                                             
         As against the five individually named defendants, the plaintiffs   
     request that the court enjoin them from attacking, battering or         
     obstructing the plaintiffs from walking on the sidewalks or driving on  
     the streets to note CC&R violations. (Injunctions 1-3.) As hereafter    
     indicated, the Court has serious concern regarding the efficacy of the  
     Homeowners' anti-patrolling/anti-photographing policies; but there are  
     clearly available to Plaintiffs criminal and civil damage sanctions     
     regarding individuals who violate Plaintiffs' rights, whether based upon
     such a questionable policy or otherwise. In support of the requests for 
     injunctive relief plaintiffs have submitted evidence that four of the   
     five individual defendants, separately interacted with plaintiff Balhorn
     in a manner offensive to her, on one occasion each.  One individual     
     defendant, James Kuhle, had two offensive interactions with Balhorn, one
     of which is now the subject of a pending criminal complaint. By its     
     terms, C.C.P. section 527.6 does not permit the issuance of an          
     injunction against "harassment", unless "a course of conduct" can be    
     shown.  A "course of conduct" is defined as "a series of acts over a    
     period of time, however short, evidencing a continuity of purpose."     
     C.C.P. section  527.6(b).  A single incident between each of the four   
     individually named defendants and plaintiff does not qualify as a course
     of conduct. Leydon v. Alexander (1989)  212 Cal.App.3d 1, 4.  As to     
     defendant Kuhle, the two incidents (car blocking driveway and yelling)  
     occurred more than four months apart, and are also insufficient to      
     support the conclusion that they constitute a course of conduct, within 
     the meaning of the statute. As to the broader statutes addressing       
     injunctive relief, Plaintiffs' remedies at law are at this time         
     adequate.                                                               
                                                                             
         Plaintiffs also seek affirmative injunctions (for which the standard
     is clear and convincing evidence) requiring the two defendant homeowner 
     associations to, orally at the next membership meeting and in a writing 
     to be prepared by plaintiff, announce the terms of the Settlement       
     Agreement in Lofing v. Mother Lode Village Owners Assn., Sacramento     
     Superior Court case no. 98 AS 03191.  (Injunctions 4-5.)  Plaintiffs    
     seek injunctions requiring the homeowners associations to orally and in 
     writing repeal and announce the repeal of the Board's Policy on         
     Patrolling and Policy on Patrolling/Annoyance (Exhibits 4 and 11),      
     including the repeal of the Board Policy that individual homeowner's    
     photographing CC&R violations is a nuisance; to announce that plaintiffs
     have a right to take photographs of violations at the next membership   
     meeting and to instruct other members not to physically restrain        
     plaintiffs from doing so. (Injunctions 6, 7, 8.)  Plaintiffs request    
     injunctions ordering the Board of Directors of the homeowners'          
     associations to enforce the CC&Rs as required by the terms of the CC&Rs 
     and by the Settlement Agreement. (Injunction 9.)  Plaintiffs further    
     seek a court order that the Board of Directors announce at the next     
     homeowners' association meeting that the plaintiffs' security cameras   
     not be removed from their home.  (Injunction 10.)                       
                                                                             
         Plaintiffs have submitted evidence of numerous apparent violations  
     of the CC&Rs (garage doors left open, temporary basketball standards    
     visible, vehicles parked in the street.)  (Exhibit 15.)  However, no    
     admissible evidence has been presented that any of the violations       
     constitutes a continuing nuisance, nor that the homeowners' associations
     have failed or refused to perform their duties to enforce the CC&Rs.    
     They have submitted evidence of acts of trespass and trespass to        
     chattels that clearly would give rise to damage claims against          
     individuals, and if the association(s) can be related to the conduct,   
     against it/them as well.                                                
         Plaintiffs seek to enforce restrictions on property use through     
     affirmative injunctions to the Boards of Directors of the homeowners'   
     associations.  The homeowners associations, through their elected board 
     of directors, are empowered (and therefor obligated) to enforce any use 
     restrictions contained in the project's declaration or master deed and  
     to enact new rules governing the use and occupancy of property within   
     the project.  Nahrstedt v. Lakeside Village Condominium Assn. (1994)  8 
     Cal. 4th 361, 374.  The Policy on Patrolling complained of by plaintiffs
     (Exhibit 4) recites on its face that it was originally adopted in 1997. 
     The subsequent amendment of that policy in 1999, and the adoption of the
     Policy on Patrolling/Annoyance ( Exhibit 11) in this year, do not appear
     (on the record before the Court) to constitute refusals by the          
     homeowners' association to enforce the CC&Rs. Rather, they appear to    
     reflect a disagreement regarding the manner or procedures incidental to 
     enforcement. Neither (given the ambiguity of a judgment which purports  
     to rely upon a colloquy in a transcript rather than to set forth express
     terms) is the Court persuaded that there clearly is a violation of a    
     related court judgment.                                                 
                                                                             
         Notwithstanding the reference to "a disagreement regarding the      
     manner or procedures incidental to enforcement", the Court seriously    
     questions the efficacy of the Board's announced "anti patrolling/ anti  
     photographing" policies (both on public policy and constitutional       
     grounds). But, the focus of plaintiffs evidence at this time is such    
     that the evidence before the court is insufficient for the Court to find
     that the Board is not responding in a timely and appropriate fashion    
     (related to the settlement agreement and related judgment) to           
     Plaintiffs' complaints regarding CC&R violations. Where a duly          
     constituted community association board, upon reasonable investigation, 
     in good faith and with regard for the best interests of the community   
     association and its members, exercises discretion within the scope of   
     its authority under relevant statutes, covenants and restrictions to    
     select among means for discharging its obligation to enforce the CC&Rs, 
     courts are required to defer to the board's authority and presumed      
     expertise.  Lamden v. La Jolla Shores Clubdominium Homeowners Assn.     
     (1999) 21 Cal. 4th 249, 253.  This court cannot on the record before it 
     find sufficient evidence to establish an abuse of discretion. And, it   
     cannot substitute its judgment for that of the homeowners' associations,
     to enjoin the Board's exercise of discretion in the enforcement of the  
     CC&Rs, as requested by plaintiffs.                                      
                                                                             
         As to individuals and associations, Plaintiffs have failed to show  
     (1) clear and convincing evidence that plaintiffs will prevail on the   
     merits, (2) that plaintiffs are likely to suffer irreparable injury from
     the denial of the injunction, and/or that (3) pecuniary compensation    
     will not afford adequate relief.                                        
                                                                             
         This minute order is effective immediately.  No formal order or     
     other notice is required, the tentative ruling providing sufficient     
     notice.                                                                 
                                                                             



     Department 53
     April 26, 2000
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     ITEM 14  00CM00001 NANCY ANDREWS VS. JENNY YANG                                
              Nature of Proceeding: PETITION TO COMPEL ARBITRATION     
              Filed By: ANDREWS, NANCY                               


          Dropped.  As indicated in the Court's ruling of March 23, 2000 the 
     petition must be served pursuant to CCP 1290.4, with proof of service   
     filed in Dept 53 at least 5 days before the hearing. See, CRC, Rule     
     317(c).                                                                 

     ***

     ITEM 15  95AM05129 VAN RU CREDIT CORPORATION VS. MICHAEL K. DECARO, ET AL      
              Nature of Proceeding: CLAIM OF EXEMPTION HEARING                                  
              Filed By: ALTHOLZ, ANDREW P.                               


        The claim of exemption is DENIED in its entirety.                    
                                                                             

     ***

     ITEM 16  98AM09349 PLACER CREDITORS BUREAU VS. KRISTINA L. ROSSKOPF, ET AL     
              Nature of Proceeding: CLAIM OF EXEMPTION HEARING                                  
              Filed By: LEE, WARREN R.                               


         The judgment is for medical expenses. No claim of exemption is      
     assertable. Claim of Exemption DENIED.                                  

     ***

     ITEM 17  98AM10161 DONTAE MASSEY VS. B AND G DELIVERY SYSTEM INC., ET AL       
              Nature of Proceeding: MOTION FOR GOOD FAITH SETTLEMENT                            
              Filed By: HARRIS, KENNETH D.                               


          The motion of Defendants Harris and B & G Delivery Systems for a   
     determination that their settlement with Plaintiff is in good faith is  
     unopposed and GRANTED, with the caveat that the determination is not    
     binding upon defendant James Carrol who was not served with the motion. 
         Moving defendants shall submit a formal order consistent with the   
     tentative decision.                                                     



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     April 26, 2000
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     ITEM 18  99AM09795 MALLORY MARKS VS. YOLO COUNTY TRANSPORTATION DISTRICT, ET AL
              Nature of Proceeding: MOTION TO FILE AMENDED COMPLAINT   
              Filed By: CRWDIS, DAVID G.                               


          Plaintiff's motion to file an amended complaint and for            
     reclassification (incorrectly titled "transfer") is GRANTED.  Upon      
     payment of any fees regarding the amended pleading and reclassification 
     fees (CCP Section 403.050) the clerk shall promptly reclassify the case 
     as a case of unlimited jurisdiction (CCP 403.020).                      
          This minute order is effective immediately.  No formal order is    
     required, the tentative ruling providing sufficient notice.             

     ***