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
Barbara Baldy, Clerk
R. Sanchez-Jacobo, Bailiff
January 28, 2000, 09:00
ITEM 1 00CS00050 IN RE: ASHLEY DEVIN PHILLIPS
Nature of Proceeding: PETITION FOR EMANCIPATION
Filed By: PHILLIPS, ASHLEY DEVIN
Appearance Required.
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ITEM 2 96AS04009 F. CLARKE WALKER, ET AL VS. ST OF CA: CA DEPT OF INS, ET
Nature of Proceeding: SUMMARY JUDGMENT (7)
Filed By: JEANSON, A. ROGER
Dropped.
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ITEM 3 98AS05336 JACK WILLIAMS VS. VAN MANSON PARKER, ET AL
Nature of Proceeding: MOTION TO AWARD ATTY FEES
Filed By: STAGG, HOWARD J.
Defendant brokers' motion for attorney fees is denied. Brokers
contend that they are entitled to contractual attorney fees because they
prevailed in their motion for summary judgment against plaintiff/buyer
Williams, and were dismissed from the complaint. However, the fee
provision in the Vacant Land Purchase Contract and Receipt for Deposit
states that in any action between the buyer and seller arising out of
the agreement, the prevailing buyer or seller will be entitled to
attorney fees. The contract further expressly provides that the brokers
are not parties to the contract. Paragraphs 25, 26. The language of
the contract brings this case within the rationale of Super 7 Motel
Associates v. Wang (1993) 16 Cal.App.4th 541.
Brokers contend that paragraph 17 of the purchase contract provides
a basis for an award of attorney fees because Williams did not mediate
his dispute involving brokers prior to filing suit. However, the fee
provision in paragraph 17 provides only that the court may, in its
discretion, refuse to award fees to a party who does not comply with its
provisions. It does not provide that the court may award fees to
brokers.
Brokers further contend that they are entitled to attorney fees
because buyer failed to offer them the opportunity to arbitrate this
dispute, as required by paragraph 18 of the purchase contract. That
paragraph does not, however, provide that brokers shall be entitled to
attorney fees if they are not offered the opportunity to arbitrate and
subsequently prevail in litigation.
Brokers also rely on the fee provision in the Exclusive
Authorization and Right to Sell, which provides for an award of attorney
fees to the prevailing party in actions involving the seller and broker.
However, the buyer is not identified as a party, and there is no basis
for construing the contract to include buyer as a party. There is no
evidence that Williams as buyer was involved in any manner in the right
to sell contract, which was executed some three years prior to the
purchase agreement. This case does not fall within the rule of Pacific
Preferred Properties, Inc. v. Moss (1999) 71 Cal.App.4th 1456.
Defendants' request for an award of costs is denied. Costs may be
claimed by filing a memorandum of costs. CCP 1034; CRC Rule 870(a)(1).
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 is required, and no further notice of the order is
necessary.
Department 54
January 28, 2000
Page 2
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ITEM 4 99AS03352 SARA LOHSE, ET AL VS. ALFRED I. NICOLINI, ET AL
Nature of Proceeding: MOTION TO COMPEL
Filed By: COLLINS, ROBERT D.
Plaintiffs' motion to compel further responses to request for
production of documents is unopposed and is granted. Defendant Alfred
I. Nicolini shall serve further responses, without objection and in
compliance with CCP section 2031(g), no later than February 8, 2000.
Sanctions are denied as the motion is unopposed.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 is required, and no further notice of the order is
necessary.
***
ITEM 5 99AS03564 CA. FED. BANK VS. MANUEL B. ROMO, ET AL
Nature of Proceeding: DEFAULT HEARING (10)
Filed By: TRAVER, WALTER J. R.
Appearance Required.
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ITEM 6 99AS06738 JOEL HARTZ, ET AL VS. STATE OF CALIFORNIA, ET AL
Nature of Proceeding: MOTION FOR RECONSIDERATION
Filed By: MICHEL, C. D.
Continued to 02/07/2000
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ITEM 7 99CS02646 IN RE: REYMUNDO SOLORIO
Nature of Proceeding: PETITION FOR CHANGE OF NAME
Filed By: SOLORIO, REYMUNDO
The petition is unopposed and is granted.
Department 54
January 28, 2000
Page 3
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ITEM 8 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: MUYRES, SHANA J.
An order to show cause will issue as prayed in the request. The
Court will sign the order setting the hearing at 9:00 a.m. on February
28, 2000, in Dept. 54. Applicant must serve notice of the OSC on the
Commissioner no later than February 2, 2000.
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ITEM 9 97AM04070 ELOISA VELA VS. STEPHEN D. ALLEN, ET AL
Nature of Proceeding: MOTION TO DISMISS
Filed By: MORRIS, JAMES M.
The motion to dismiss plaintiff's complaint for delay in prosecution
is granted. (The Court notes for the record that no motion to dismiss
the complaint-in-intervention is pending.)
Plaintiff's explanation of illness explains only a small portion of
the time this case has been inactive. No explanation has been given for
the other periods of inactivity, e.g. May 1998 through June 1999. The
burden is on the plaintiff to move her case along, yet she has taken no
affirmative steps after filing the complaint. Her only activity has
been to respond to written discovery in October 1997 and to appear for
deposition in February 1998. Plaintiff has not even responded to
defendant's attempts to negotiate a settlement, other than one letter
stating that she is not in a position to make a settlement demand. The
fact that a workers compensation proceeding is pending is a factor the
Court may consider, but plaintiff has not produced evidence that any
part of the delay is attributable to the pendency of the workers
compensation proceeding.
The Court finds that the delay is largely unexcused, and that
defendant has been prejudiced by the length of time that has passed.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 is required, except that defendant shall submit a
judgment of dismissal.
Department 54
January 28, 2000
Page 4
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ITEM 10 99AM01408 LARRY FOSTER, JR., ET AL VS. BEVERLY SUE BERKLEY, ET AL
Nature of Proceeding: MOT. TO COMPEL/ADMISSIONS/SANCTIONS
Filed By: WILLIAMS, KATHLEEN J.
Defendants' motion to compel responses to form and special
interrogatories is granted. Plaintiffs Shainn Sperr, Shellody Sperr and
Robert Sperr, by and through their Guardians Ad Litem, shall file
responses, without objection, to form and special interrogatories no
later than March 10, 2000. Sanctions are denied.
Defendants' motion for order admitting the truthfulness of the
matters referred to in the request for admissions is denied. The minor
plaintiffs are not bound by the failure of their guardians ad litem to
respond to the request for admissions. In re Christina B. (1993) 19
Cal.App.4th 1441, 1452-1455.
Plaintiff's counsel is ordered to present a petition to appoint a
substitute guardian ad litem for the minor plaintiffs or show cause why
the appointment of the current guardians ad litem should not be
rescinded no later than February 9, 2000.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 is required, and no further notice of the order is
necessary.
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