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 29, 2000, 09:00
ITEM 1 00AS00702 A.G.D., INC., ET AL VS. SKYWAY FREIGHT SYSTEMS, INC.
Nature of Proceeding: WRIT OF ATTACHMENT
Filed By: MURRAY, TODD A.
The petition for writ of attachment is GRANTED on condition proof of
jurisdictional service and service of the application is filed with the
court before the hearing. Bond in the amount of $7500.
***
ITEM 2 97AS02058 OLAF MANDUJANO, JR., ET AL VS. B & G COURIER SERVICES, ET AL
Nature of Proceeding: MOTION TO ENFORCE SETTLEMENT/SANCTIONS
Filed By: COLLINS, JAMES P.
Dropped.
***
ITEM 3 98AS00136 PARKE PLACE AT GOLD RIVER HMOWRS ASSOC VS. JOHN ROBINO, ETAL
Nature of Proceeding: MOTION TO QUASH LEVY
Filed By: HUNTER, HEIDI A.
Defendants' Motion to Quash Levy on the SAFE credit union bank
account is GRANTED. CCP section 917.1 requires posting of an
undertaking in order to stay enforcement of a money judgment on appeal.
CCP section 917.1(d) exempts "costs only" judgments from the undertaking
requirement whenever costs are awarded under CCP section 1021 et seq..
The legislature has expressed a clear intent to exempt this kind of
judgment from the undertaking requirement. Contractual and statutory
attorney fees are expressly denominated by CCP section 1021 et. seq. as
recoverable costs of suit. Enforcement is thus automatically stayed
pending appeal. The reasoning of the Third District Court of Appeal in
Nielson v. Stumbos (1990) 226 Cal.App.3d 301, 305, decided under an
earlier version of the statute, supports this conclusion. The Banks v.
Manos (1991) 232 Cal.App.3d 123 and Bank of San Pedro v. Superior Court
(1992) 3 Cal.4th 797 decisions do not compel a different result. The
cases predate the amendment to 917.1(d) and in any event the reference
to attorney fees in the Bank of San Pedro case is pure dicta. The bank
account was levied after the notice of appeal was filed and thus it is
properly quashed.
Defendants' motion to remove the lien on real property is DENIED.
CCP section 697.040 provides inter alia that if enforcement of a
judgment is stayed on appeal by the giving of a sufficient undertaking
under chapter 2 commencing with section 916 of Title 13 existing liens
are extinguished. The statute does not on its face apply to an automatic
stay. Plaintiff has cited and the court knows of no other basis for
removal of the lien and thus the lien properly remains in effect pending
the outcome of the appeal. The Court notes that at the time the abstract
of judgment was issued there was no stay in effect. Plaintiffs are thus
ordered to obtain an amended abstract of judgment that reflects the
existence of the stay (CCP section 674(g) and to record the amended
abstract.
Department 54
February 29, 2000
Page 2
_________________
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ITEM 4 98AS05900 CMSH ELECTRICAL, INC. VS. STONE-CHENEY CONST. CO INC., ET AL
Nature of Proceeding: MOTION TO FILE CROSS COMPLAINT
Filed By: WIEZEL, JAMES P.
Cross-defendant Elk Grove Unified School District's (District)
motion to file a cross-complaint for indemnity against the Bell
cross-defendants is GRANTED. Should the architect cross-defendants find
that they are unable to complete discovery before the cut-off date, they
may apply to the court for an extension of the discovery cut-off or if
necessary a continuance of the trial date.
The minute order is effective immediately. No formal order or notice
pursuant to CRC rule 391 is required.
***
ITEM 5 98AS06100 J. ALAN CATES VS. CALIF. STATE CONTROLLER'S OFFICE, ET AL.,
Nature of Proceeding: MOT FOR ENFORCEMENT OF ORDER
Filed By: THE COURT
Appearance Required.
***
ITEM 6 99AS00448 LUKE G. CONLEY, III VS. MICROSOFT CORPORATION, ET AL
Nature of Proceeding: MOTION TO COMPEL
Filed By: CONLEY, LUKE G. III
Plaintiff's motion to compel further responses to request for
production of documents is DENIED. Defendant's objections are well
taken. Plaintiff has failed to avail himself of defendant's offer to
meet and confer to resolve these problems. He has also refused to
stipulate to a protective order even though he concedes that such an
order is necessary. In these circumstances and in light of the
willingness of defendant to reach resolution, the motion is not well
taken.
The minute order is effective immediately. No formal order or notice
pursuant to CRC rule 391 is required.
Department 54
February 29, 2000
Page 3
_________________
***
ITEM 7 99AS03926 JOHN PARK, ET AL VS. BANK OF AMERICA, ET AL
Nature of Proceeding: MOTION TO RELIEVE DEFAULT
Filed By: KING, CHERYL L.
Defendant Bank of America's motion to set aside the entry of default
is GRANTED.
Plaintiffs have filed no opposition to the motion. The
uncontroverted evidence submitted by Bank of America sufficiently proves
that the entry of default against the Bank should be set aside, as
proper service was not effected on the Bank. The entry of default is
hereby vacated.
The minute order is effective immediately. No formal order or notice
pursuant to CRC rule 391 is required.
***
ITEM 8 99AS04046 RODNEY L. WILSON, ET AL VS. ALL PHASE ENTERPRISES, ET AL
Nature of Proceeding: MOTION TO STRIKE
Filed By: ABRAMSON, JOE R.
Defendants' Motion to Strike is DENIED. The items sought to be
stricken are de minimis. The Court will not engage in this type of
micromanagement of the Pleadings. Defendants' demurrer to the Fifth
(RICO) cause of action for failure to state a cause of action is
sustained without leave to amend. For an act or omission to qualify as
racketeering activity it must be included in the list of activities set
forth in title 18, USC section 1961(1). (Gervase v. Superior Court
(1995) 31 Cal.App.4th 1218, 1232) Plaintiff has failed to allege such an
activity. The cause of action fails for lack of a necessary predicate
act. Defendant All Phase's demurrer to the Seventh (breach of contract)
cause of action for failure to state a cause of action is sustained
without leave to amend. Defendants shall file an Answer no later than
March 9, 2000.
The minute order is effective immediately. No formal order or notice
pursuant to CRC rule 391 is required.
***
Department 54
February 29, 2000
Page 4
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ITEM 9 99AS04316 STEVEN SCHISLER, ET AL VS. SUSAN MCCORMICK
Nature of Proceeding: MOTION TO COMPEL
Filed By: MYER, JENNIFER D.
Defendant's motion to compel responses to request for production of
documents and to form interrogatories, and for order to serve a
statement of damages is GRANTED. No sanctions are awarded as the motion
is not opposed. Plaintiff shall serve responses without objection and a
statement of damages no later than March 9, 2000.
The minute order is effective immediately, no formal order or notice
pursuant to CRC rule 391 is required.
***
ITEM 10 99AS04530 ROBERT BACHTEL, ET AL VS. ROY POWELL, ET AL
Nature of Proceeding: MOTION TO APPOINT SPECIAL MASTER
Filed By: BOOTH, EILEEN T.
Defendant's Motion to Appoint a Special Master is DENIED. The cited
authority does not support the type of appointment requested. The
parties have not stipulated to the appointment of a referee (CCP section
638) and thus any such appointment would properly be made for a purpose
set forth in CCP section 639. Section 639(e) provides for a reference to
hear and determine discovery disputes and to report findings and make
recommendations. Section 639 does not provide for a reference to mediate
or settle the case or to direct the setting up of a document repository.
The findings of a referee appointed pursuant to CCP section 639 are not
binding. Defendant has cited, and the court knows of no authority for
appointment of a special master to perform all of the functions
requested here. Moreover, even if the court could make such an order,
the record does not reveal any need for such appointment at this time.
The minute order is effective immediately. No formal order or notice
pursuant to CRC rule 391 is required.
***
ITEM 11 99AS04602 TIMOTHY M. REUTER VS. GORDON JAMES, ET AL
Nature of Proceeding: DEMURRER (4)
Filed By: GUSTAVSON, JULIE B.
Defendant James Curtis, demurrer to the First (Defamation), Second
(Intentional Infliction of Emotional Distress), Third (Negligent
Infliction of Emotional Distress), Fourth (Breach of contract), Fifth
(Breach of the Covenant of Good Faith and Fair Dealing), Sixth (Fraud),
Seventh (Involuntary trust) and Eighth (Injunctive Relief) causes of
action for failure to state a cause of action is SUSTAINED without leave
to amend. The Complaint contains no facts implicating this defendant in
the alleged conduct.
The demurrer of Defendant Mawhinney to each and every cause of
action for failure to state a cause of action is SUSTAINED. Plaintiffs
have requested leave to amend if the court finds that the demurrer has
merit. However plaintiff offered no substantive opposition as to causes
of action 1-3 and 5-8 and failed to explain how these causes of action
can be amended to cure the defects. On this record no leave to amend is
granted as to causes of action 1-3 and 5-8. The demurrer to the fourth
cause of action is SUSTAINED with leave to amend.
The demurrer of Defendant Joanne James to causes of action 1-3 and
5-8 for failure to state a cause of action is SUSTAINED without leave to
amend. The demurrer to the Fourth Cause of Action is SUSTAINED with
leave to amend.
Defendant Gordon James' demurrer to causes of action 1-3 is
SUSTAINED for failure to state a cause of action without leave to amend.
These claims are premised on the conduct of FCMC Mortgage. Plaintiffs
have failed to demonstrate how they could cure the defects. The demurrer
to the Fourth through Eighth causes of action is SUSTAINED with leave to
amend. As to this defendant, it may be possible for plaintiffs to
properly plead the elements of claims based in contract and fraud.
Plaintiffs shall file and serve a First Amended Complaint in
compliance with this ruling no later than March 20.
The minute order is effective immediately no formal order or notice
pursuant to CRC rule 391 is required.
Department 54
February 29, 2000
Page 5
_________________
***
ITEM 12 99AS04690 MICHAEL SOUTHWICK VS. COUNTY OF SACRAMENTO, ET AL
Nature of Proceeding: MOTION TO COMPEL
Filed By: DREES, MICHELLE J.
Defendant's motion to compel responses to interrogatories and
request for production of documents is GRANTED. No sanctions are awarded
as the motion was not opposed. Plaintiff shall serve responses without
objection no later than March 9, 2000.
The minute order is effective immediately. NO formal order or notice
pursuant to CRC rule 391 is required.
***
ITEM 13 99AS04770 IVALDO LENCI, ET AL VS. SACRAMENTO COUNTY, ET AL
Nature of Proceeding: MOTION FOR DISCOVERY
Filed By: LENCI, IVALDO
Plaintiffs' motion for discovery is DENIED. The motion seeks further
responses to request for production of documents and to compel
depositions. Plaintiff has served no deposition notices and therefore
there is no basis for compelling depositions. As to the request for
production, plaintiffs have failed to file a separate statement pursuant
to CRC rule 335 and the motion is properly denied on that basis. No
sanctions are awarded.
The minute order is effective immediately. No formal order or notice
pursuant to CRC rule 391 is required.
***
ITEM 14 99CS02464 IN RE: KAESHAUN RAYSHAD SHAMSID-DEEN HARRIS
Nature of Proceeding: PETITION FOR CHANGE OF NAME
Filed By: SHADIAH, SHAMSID-DEEN
The petition for name change is GRANTED.
***
Department 54
February 29, 2000
Page 6
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ITEM 15 98AM09270 WILMA BANKS VS LUCKY STORES, INC.
Nature of Proceeding: MOTION TO DISMISS
Filed By: TONON, GAYLE K.
Defendant's Motion to Dismiss is dropped from calendar for
inadequate service. CCP section 1005, amended effective January 1, 2000,
requires motions to be served and filed 21 calendar days before the
hearing with an additional five days if the service is by mail. The
proof of service reflects service by mail on February 7 for a February
29 hearing date.
The minute order is effective immediately. No formal order or notice
pursuant to CRC rule 391 is required.
***
ITEM 16 99AM04492 GENERAL MOTORS ACCEPT. CORP. VS. TOMMIE L. PRUITT, ET AL
Nature of Proceeding: MOTION TO HAVE ADMISSIONS DEEMED
Filed By: MACDOWELL, TODD A.
The Motion to Deem Admissions Admitted is unopposed and is GRANTED.
Defendant shall pay $398.00 as sanctions to plaintiff.
The minute order is effective immediately. No formal order or notice
pursuant to CRC rule 391 is required.
***
