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 28, 2000, 09:00
ITEM 1 98AS03692 JERI MOORE, ET AL. VS. STEPHEN JAMES STOLTZ
Nature of Proceeding: MOTION TO COMPEL/SANCTIONS
Filed By: LICHTNER, ALEXANDER O.
Dropped.
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ITEM 2 98AS04538 WILLIAM CLARKE, ET AL VS. PACIFIC WINDOW CORPORATION, ET AL
Nature of Proceeding: MOTION TO FILE AMENDED COMPLAINT
Filed By: DELUMEN, JESSAVEL Y.
The motion to file a first amended cross-complaint is granted. The
cross-complaint shall be filed and served no later than Tuesday,
February 29th, 2000 and shall be in the form set forth as Exhibit A to
the errata to the declaration of Dennis B. Cook, filed February 9th,
2000.
The cross-complaint attached to the Errata to the declaration of Dennis
B. Cook, filed February 9th, 2000, will remain attached as an exhibit
and will not be filed as the operative cross-complaint.
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 28, 2000
Page 2
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ITEM 3 99AS01784 CONRAD BLICKENSTORFER, ET AL VS. SAFECO INS CO OF AMERICA
Nature of Proceeding: MOTION TO COMPEL
Filed By: NEIDLINGER, WENDY L.
Dropped.
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ITEM 4 99AS03978 WELLS FARGO BANK, N.A. VS. DEREK MESSENGER, ET AL
Nature of Proceeding: MOTION TO QUASH SERVICE SUMMON
Filed By: BENJAMIN, WENDY L.
Continued to 03/31/2000
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ITEM 5 99AS04122 GREAT AMERICAN INS. CO. ET AL VS. ALTA CA. REGIONAL CTR,ETAL
Nature of Proceeding: SUMMARY JUDGMENT
Filed By: SMITH, PHILLIP E.
The motion for summary judgment is granted. In deciding whether there
is a duty to defend, the allegations of the complaint must be analyzed
to determine if the facts set forth therein give rise to the potential
for coverage under the insuring agreement. Gray v Zurich Insurance Co.
(1966) 65 C.2d 263. Facts extrinsic to the complaint may give rise to a
duty to defend when they reveal a possibility that the claim may be
covered by the policy. Conversely, where extrinsic facts eliminate the
potential for coverage, the insurer may decline to defend, even when the
bare allegations in the complaint suggest potential liability. Waller v
Truck Ins. Exchange, Inc. (1995) 11 C.4th 1, 19. In this case, it is
undisputed plaintiff Great American is currently defending defendant
with a reservation of rights. Although the allegations of the
underlying Grogan complaint may give rise to the potential for coverage
under defendants' policies, the undisputed extrinsic evidence
establishes that coverage for the underlying action is barred by the
professional service and professional liability exclusions in
defendants' policies. See exhibit 12.
Defendant's objections to plaintiffs' exhibits ##4 and 5 are sustained.
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 28, 2000
Page 3
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ITEM 6 99AS04580 NELSON T. DAVIS, JR. VS. ALLEN TRANSPORTATION COMPANY
Nature of Proceeding: MOTION TO COMPEL
Filed By: WALLIS, DAVID A.
Dropped.
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ITEM 7 99AS04788 GRAZYNA KOSTROWICKI-VANDENBERG VS. VANDENBERG & KEIL, ET AL
Nature of Proceeding: MOTION FOR SUMMARY ADJUDICATION
Filed By: GENSHLEA, JOSEPH S.
The motion for summary adjudication of the second cause of action, which
is for breach of note 1, which includes the balance of note 2, is
granted. Plaintiff has shown the notes are due, demand has been made,
and no payment has been made. In opposing the motion, defendant submits
his declaration that an understanding was reached that the note(s) were
really advances and would not be paid until certain conditions occurred.
The objection to this evidence on the basis of parol evidence is
sustained. Without this evidence, there is no triable issue of material
fact as to Note 1.
The motion for summary adjudication of the third cause of action is
denied. The obligee on the accounts is Capitol Park Company. Plaintiff
argues she is a 50% owner of Plymouth Investment Company which, together
with her 66% interest in Capitol Park Company, emtitles her to an 84%
interest in the accounts. Defendant argues plaintiff does not have a
50% interest in Plymouth Investment Company. See Keil declaration.
There is therefore a triable issue of material fact as to how much
plaintiff is entitled to receive from the accounts.
Plaintiff's objections to the declaration of Swanson, paragraph 6, is
sustained. The objections are otherwise overruled.
Plaintiff's objections to the declaration of Keil, paragraphs 7, 8 and 9
are sustained. The objections are otherwise overruled.
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 28, 2000
Page 4
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ITEM 8 99AS04914 CHARLES HICKS VS. ROBERT AHRENS, ET AL
Nature of Proceeding: SUMMARY JUDGMENT
Filed By: MCCLELLAN, BRIAN R.
Defendant's motion for summary judgment is denied. Defendant has not
shown he is entitled to judgment as a matter of law. Under the
circumstances presented, assumption of the risk, otherwise known in this
situation as the "firefighter's rule", does not apply. Neighbarger v
Irwin Industries (1994) 8 C.4th 532.
This minute order is effective immediately.
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ITEM 9 99AS05264 OPTICAL SOLUTIONS, INC VS. LOUISE WHITE, ET AL
Nature of Proceeding: DEMURRER
Filed By: SMITH, MATTHEW J.
The demurrer to the breach of fiduciary cause of action is sustained
without leave to amend. The facts alleged do not show that a fiduciary
relationship was established.
This minute order is effective immediately. No formal order per C.R.C.
rule 391 is needed, nor is further notice of this ruling requuired.
***
ITEM 10 99AS06166 VICTORINO FLORES GARCIA VS. SACRAMENTO BAG CAPITAL CO.,ET AL
Nature of Proceeding: DEMURRER
Filed By: COHEN, DAVID L.
The demurrer by defendant Sacramento Bag Capital Company is sustained
without leave to amend due to the exclusivity of the Worker's
Compensation Act. The cause of action for violation of Labor Code
4558 is defective as it does not allege the machine that injured
plaintiff was a power press. McCoy v Zahniser Graphics, Inc. (1995) 39
C.A.4th 107.
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 28, 2000
Page 5
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ITEM 11 CV328346 INSURANCE COMM. OF THE ST. OF CA. VS. CAL-FARM INS. CO.
Nature of Proceeding: MOTION FOR OSC NOT TO ALLOW CLAIM
Filed By: MEYRES, SHANA J.
The file does not show that the O.S.C. was served on the Insurance
Commissioner. There has been no return filed as to the O.S.C. No other
papers have been filed in this matter. The O.S.C. is therefore dropped
from the Court's calendar.
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ITEM 12 96AM04360 ASSETCARE, INC. VS. TRACY R. SPENCER, ET AL
Nature of Proceeding: CLAIM OF EXEMPTION
Filed By: SIMMONS, FRANK C.
After reviewing plaintiff's written response to the O.S.C., the Court
grants the claim of exemption on the ground defendant is entitled to a
satisfaction of judgment. The Clerk is directed to enter a satisfaction
of judgment in this case. The court notes that it has no personal
jurisdiction over plaintiff's assignor, whose actions have cost both
parties to this action considerable expense and inconvenience. If there
are still outstanding expenses or charges which plaintiff has incurred,
those charges should be the responsibility of the assignor, not the
defendant.
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 13 98AM10158 MARIA SY VS. BEL AIR STORE
Nature of Proceeding: MOTION TO COMPEL
Filed By: SAHAKIAN, STEPHANIE A.
Dropped.
Department 54
February 28, 2000
Page 6
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ITEM 14 99AM03092 FIRST SELECT CORPORATION VS. JONCZYK JOLANTA
Nature of Proceeding: MOTION FOR ORDER AMENDING JUDGMENT
Filed By: DANIEL, JEFF V.
The judgment entered on October 18th, 1999, is amended Nunc Pro Tunc as
of October 18th, 1999, to correctly state the amount as being
$3,391.25.
This minute order is effective immediately.
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