NOTICE
To request a hearing on any matter on this
calendar, you must call the Court at (916) 874-7848
(Department 54) by 4:30 p.m. today. Local rule 31(h). If
no call is made the tentative ruling becomes the order of
the court.
TENTATIVE RULINGS
Department 54
Superior Court of California
800 H Street
Joe S. Gray, Judge
Peggy Allen, Clerk
R. Sanchez-Jacobo, Bailiff
February 24, 2000, 09:00
ITEM 1 00AS00176 MALONEY & BELL GEN CONTRS VS. RONALD ROY BIEBER, ET AL
Nature of Proceeding: WRIT OF ATTACHMENT
Filed By: MONTAGUE, JOHN D.
The writs are granted as prayed in condition plaintiff files two bonds:
one bond of $7,500 for a writ of attachment as to Spartan Brokerage
Group, Inc. and one bond of $7,500 for a writ of attachment as to Roy
Bieber.
***
ITEM 2 00CS00018 HAROLD CRAIG MOORE, ET AL VS. JERRY TRIPP
Nature of Proceeding: PETITION TO RELEASE PROPERTY
Filed By: MACDONALD, DOUGLAS A.
Continued to 04/06/2000
***
ITEM 3 95AS01161 JOHN B. VANDENBERG, ET AL VS. PHOENIX ASSURANCE CO., ET AL
Nature of Proceeding: SUMMARY ADJUDICATIONS(2)/JOINDER
Filed By: VAZAKAS, THOMAS L.
Although objected to, the following facts are undisputed: the
underlying action (hereafter Boyd) involved a suit against plaintiffs
for alleged contamination of property. The lawsuit was partially
settled. The Boyd's claims for actual physical damage to the property
were resolved, and Mrs. Boyd agreed to dismiss all of her claims against
Vandenberg for the damage to her property. The parties agreed to
arbitration of the remaining claim, which was Mrs. Boyd's claim for
economic loss from the alleged breach of the Boyd leases. Other claims
which were reserved for later determination included the question of
whether the claim submitted to arbitration was covered by the USF&G
insurance contracts and whether Vandenberg was entitled to Cumis
counsel.
Mrs. Boyd's claim for economic loss was submitted to an arbitrator, who
ultimately ruled in favor of Mrs. Boyd. That award was then confirmed
by the Superior Court and entered as a judgment (hereafter arbitration
judgment).
The motion for summary adjudication seeks adjudication as to whether
defendant insurance companies have a duty to indemnify Vandenberg for
the arbitration judgment.
The Supreme Court has ruled that the arbitration judgment cannot be
offensively used for collateral estoppel purposes against parties that
were not part of the arbitration. Vandenberg v Superior Court (1999) 21
C.4th 815. The parties may, in this litigation, adjudicate anew whether
plaintiffs are liable for breach of the leases and, if so, the amount of
damages suffered by Mrs. Boyd. Since the arbitration judgment does not
have collateral estoppel effect, then neither the Vandenbergs or the
insurance companies are bound by it. Since neither party is bound by
the arbitration judgment, which can be relitigated anew in this action,
then it is clear the insurance companies have no present duty to
indemnify plaintiffs for the arbitration judgment.
Plaintiffs have alleged the insurance companies breached their duties to
indemnify plaintiffs for the arbitration judgment. See complaint. The
Court has reviewed the provisions of all the insuance policies that have
been submitted, including those portions submitted by plaintiff which
they claim defendants failed to address in their moving papers. "The
focus of coverage for property damage is the property damage itself".
Vandenberg v Superior Court (1999) 21 C.4th 815. It is clear from
reading the award of the arbitrator and the claim which was submitted to
him that any amount for physical damage caused by the contamination was
excluded. The claim and the award were only for lost profits caused by
the delay in sale of the property. As noted above, the Court has
reviewed the applicable policy language and finds that the general
liability policies of the defendants, including the umbrella, garage and
other policies cited, do not provide coverage for the purely economic
loss that was awarded by the arbitrator. The arbitrator's award was not
a measure of damages to physical property which is within the policy's
coverage. Waller v Truck Insurance Exchange (1995) 11 C.4th 1, Geddes &
Smith, Inc. v St. Paul Mercury Indemnity Co. (1965) 63 C.2d 602, Geddes
& Smith, Inc. v St Paul Mercury Indemnity Co. (1959) 51 C.2d 558, Collin
v American Empire Insurance Co. (1994) 21 C.A.4th 787, Armstrong World
Industries, Inc. v Aetna Casualty & Surety Co. (1996) 45 C.A.4th 1,
Giddings v Industrial Indemnity Co. (1980) 112 C.A.3d 213.
The motions for summary adjudication are therefore granted.
This minute order is effective immediately.
The prevailing party is directed to prepare an order for the court's
signature pursuant to CCP 437c(g). TERA PHARMACEUTICALS v. SUPERIOR
COURT(1985) 170 Cal.App.3d 530,
Department 54
February 24, 2000
Page 2
_________________
***
ITEM 4 98AS05290 CYNTHIA SAJDAK VS. KAISER PERMANENTE
Nature of Proceeding: SUMMARY JUDGMENT/MOT. FOR SANCTIONS
Filed By: POOLEY, LISA M.
Defendant has submitted facts in its separate statement showing the FEHA
cause of action is barred by the statute of limitations. It has also
requested the Court to take judicial notice of various documents, none
of which are referred to in defendant's separate statement. In opposing
the motion for summary judgment, plaintiff has made arguments, without
submitting her own separate statement. The arguments are, however,
based on the documents which defendant has asked the Court to take
judicial notice of in ruling on the motion. Therefore, in ruling on the
motion the Court will rely on defendant's separate statement and the
documents set forth in the request for judicial notice, which is hereby
granted.
The motion for summary judgment is denied. The document from the EEOC
makes plain that they are awaiting the results of the DFEH investigation
before reaching a conclulsion as to whether discrimination occurred.
The fact the EEOC adopted the findings of the DFEH does not militate
against allowing plaintiff to have the statute of limitations tolled
pending receipt of the right to sue letter from the EEOC. Since the
complaint was filed within the applicable time limit after receiving the
right to sue letter from the EEOC, this matter is not barred by the
statute of limitations. The time in which to file her DFEH complaint
was tolled during the pendency the claim was with the EEOC. Defendant
has failed to show it is entitled to judgment as a matter of law.
The motion for sanctions is denied.
This minute order is effective immediately.
***
ITEM 5 98AS05716 NANCY NUNES, ET AL VS. EPHROM FRANKLIN MCCURLEY, ET AL
Nature of Proceeding: MOTION TO FILE AMENDED COMPLAINT
Filed By: CLAIR, STEVEN A.
The motion to amend by plaintiff Paul Salinas, Jr. is granted. No
opposition to the motion has been filed.
This minute order is effective immediately. No formal order per C.R.C.
rule 391 is needed, nor is further notice of this ruling required.
Department 54
February 24, 2000
Page 3
_________________
***
ITEM 6 99AS01074 CITY OF LODI VS. UNIGARD INSURANCE COMPANY
Nature of Proceeding: SUMMARY JUDGMENT/MOTION TO COMPEL
Filed By: PAGET, BRIAN R.
Both motions are continued on the Court's own motion pending a ruling on
defendant's motion for summary judgment/adjudication, which is currently
under submission.
Both motions are continued until Thursday, March 2nd, 2000.
***
ITEM 7 99AS03828 WILMA OSBORNE VS. ELK GROVE UNIFIED SCHOOL DISTRICT
Nature of Proceeding: MOTION TO DISMISS
Filed By: ANWYL, JAMES T.
In reviewing the papers submitted with the motion, the Court notes
plaintiff did eventually file a response which was verified and did
produce documents, although they were not produced with the verified
response. In determining sanctions, the Court must at all times make
sure the "punishment fits the crime". In this case, the Court order
required plaintiff to serve a further response and produce documents.
Plaintiff did serve a further response and did produce documents. The
documents produced, according to defendant, were not produced in the
manner required by the code. The verified response was not served by
the date set forth in the Court's order. As of the time of making the
motion, therefore, defendant had both the response and the documents.
The Court therefore does not find it can dismiss this action based on
plaintiff's conduct.
This minute order is effective immediately. No formal order per C.R.C.
rule 391 is needed, nor is further notice of this ruling required.
***
ITEM 8 99AS05720 TRACY A. FRENTZEN VS. UNILAB CORPORATION
Nature of Proceeding: DEMURRER
Filed By: CHAMPAGNE, PAULA
The demurrer to the third cause of action is sustained with leave to
amend. Although the Court agrees that under certain circumstances a
plaintiff may maintain a libel action where it is foreseeable that a
defendant's act would result in publication to a third person, see
McKinney v County of Santa Clara (1980) 110 C.A.3d 787 and Live Oak
Publishing Co. v Cohagan (1991) 234 C.A.3d 1277, plaintiff has failed to
allege that such republication took place. Plaintiff alleges in the
third cause of action that defendant has published and republished the
alleged defamatory statements to other, third party recipients. However
these allegations are conclusory, with no facts to support them.
Moreover, as plead, plaintiff's allegations do not fit within the Jansen
exception. For the most part, the contents of the letter appear to be
opinion. The part of the letter that plaintiff quotes as stating
plaintiff has made threatening comments regarding her coworkers is vague
and ambiguous. If plaintiff is claiming some innuendo and inducement
regarding this comment, she must plead it.
Plaintiff is to file and serve her second amended complaint no later
than Monday, March 6th, 2000. Defendant is to file a response thereto
no later than Thursday, March 16th, 2000.
This minute order is effective immediately. No formal order per C.R.C.
rule 391 is needed, nor is further notice of this ruling required.
Department 54
February 24, 2000
Page 4
_________________
***
ITEM 9 99AS05774 DAVID D. SHARP, ET AL VS. FORD MOTOR COMPANY, ET AL
Nature of Proceeding: DEMURRER
Filed By: KRALOWEC, KIMBERLY A.
Continued to 03/09/2000
***
ITEM 10 99AS07012 WYLIE A. PRATHER VS. CARL HALLER, M.D.
Nature of Proceeding: DEMURRER
Filed By: CLARK, SARA A.
Mr. Prather has made it quite clear in his response to Dr. Heller's
demurrer that the current lawsuit is not intended to state any facts
setting forth any theory of recovery against Dr. Heller. According to
Mr. Prather, Dr. Heller was named as a defendant only because the
medical report authored by him is in question. Since plaintiff does not
seek any relief from Dr. Heller then there is no need for Dr. Heller to
remain a defendant in this lawsuit. Plaintiff states Dr. Heller does
not need to answer or become involved in this proceeding. However, Dr.
Heller has been named as a defendant. If he does not respond in some
manner, there is the danger a default and default judgment could be
entered against him. Since plaintiff insists this lawsuit is not
against Dr. Heller, he should have no objection to the Court sustaining
the demurrer without leave to amend.
The demurrer to the complaint is sustained without leave to amend.
This minute order is effective immediately. No formal order per C.R.C.
rule 391 is needed, however defendant is to serve plaintiff with a copy
of the Court's ruling forthwith.
***
ITEM 11 96AM09148 ALEJANDRO SALAIS VS. GERALD M. SANTUCCI
Nature of Proceeding: DEFAULT HEARING
Filed By: HEWITT, ROBB
The Court notes the complaint does not state any amount requested as
damages, which is required by statute and case law prior to entry of
default. The Court therefore drops this matter from the calendar unless
at the prove-up hearing, plaintiff can provide the Court with evidence
that he has compled with the requirements set forth above.
Department 54
February 24, 2000
Page 5
_________________
***
ITEM 12 99AM09548 THE CIT GROUP/SALES FIN. INC. VS. TONY F. ENELLA, ET AL
Nature of Proceeding: WRIT OF POSSESSION HEARING (2)
Filed By: CRASTZ, JENNIFER WITHERELL
Dropped.
***
