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
K. Miller, Clerk
R. Sanchez-Jacobo, Bailiff
March 3, 2000, 09:00
ITEM 1 00CS00130 IN RE: MARCO MIGUEL JOHNSON
Nature of Proceeding: PETITION FOR CHANGE OF NAME
Filed By: JOHNSON, MARCO MIGUEL
The petition for change of name is granted.
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ITEM 2 98AS01404 MARTIN EDWARDS VS. LESTER SIMMONS, ET AL
Nature of Proceeding: SUMMARY JUDGMENT
Filed By: WANLAND, DONALD M. JR
The motion for summary adjudication of the first cause of action by the
Simmons defendants is denied. First, the Court exercises its discretion
pursuant to C.C.P. 437c(e). The proof of a material fact offered in
support of the summary adjudication motion, Dr. Simmons' state of mind
regarding malice or lack thereof, is sought to be established solely by
Dr. Simmons' declaration. See defendants' separate statement, Facts
##2-14, 17-19 and 22. Second, Dr. Simmons has failed to meet his burden
of showing that his "full and fair disclosure" to Mr. Zinicola included
his statement that what Dr. Edwards had said was not true. Stating the
statements were negative, derogatory and damaging does not mean Dr.
Simmons told Mr. Zinicola they were not true. Third, there is a triable
issue of material fact as to whether defendants made a full, fair and
complete disclosure to attorney Zinicola of all facts known to the
Simmons defendants regarding the circumstances of Dr. Edwards'
wrongdoing. See Zinicola declarations of 12/23/99 and 1/13/00, and
Zinicola deposition, Exhibit F. Although defendants argue the truth or
falsity of Edwards' statements in court and to the insurance
investigators in the underlying action are irrelevant as the underlying
action was dismissed pursuant to a SLAPP motion, they are incorrect. In
making its determination under the SLAPP statute, the court shall grant
the motion unless it determines the plaintiff has established that there
is a probability that the plaintiff will prevail on the claim. The
court therefore is to consider the merits of the underlying claim in
determining whether to dismiss the complaint. Evidence regarding the
truth or falsity of Edwards' statements as alleged in the 97ASO2333 case
is therefore very relevant in determining the present motion for summary
adjudication. According to Mr. Zinicola, the Simmons defendants were
told they needed to come up with the evidence that Dr. Edwards was
making untrue statements to various insurance companies. They were told
Mr. Zinicola needed the actual statements because the in-court testimony
was privileged. The information that statements had been made to
insurance companies by Dr. Edwards came from Ute and Lester Simmons, who
told Mr. Zinicola they would provide specifics. "...[O]n the promise
they would provide the specifics, based on their (Simmons)
representations that these things had occurred, I filed a pleading at
their request. Actually, at their insistence." What was discribed to
Mr. Zinicola was not in contemplation of litigation, therefore he felt
it was not privileged. The information promised never came. See
exhibit F, Zinicola deposition.
The motion for summary adjudication of the first cause of action by the
McAuley defendants is denied. See the ruling above regarding C.C.P.
437c(e). The deposition testimony of Mr. Zinicola, cited in support of
fact #23, does not support the fact that Dr. McAuley was not involved in
maintaining the lawsuit. There is a triable issue of material fact as
to whether Dr. McAuley was involved in maintaining the lawuist. See
plaintiff's exhibit H.
The motion for summary adjudication of the second cause of action is
granted. C.C. 47(b).
Defendants' objections to plaintiff's RJN Exhibits A, B, and C is
sustained.
Defendants' objections to plaintiff's Exhibit D:
paragraphs 18-23, sustained.
paragraph 24, overruled.
paragraph 25, overruled.
paragraph 26, sustained.
paragraph 27, overruled.
paragraph 28, overruled.
paragraphs 29-32, sustained.
Defendants' objections to plaintiff's Exhibit E:
paragraphs 3-9, sustained.
paragraph 18, overruled.
paragraphs 19-27, sustained.
paragraphs 28-30, overruled.
Defendants' objections to plaintiff's Exhibit F: overruled. The court's
copy is highlighted. The highlighted portions of the pages set forth in
the exhibit support the facts for which they are cited.
The Court does not rule on defendants' "objections" to plaintiff's
Statement of Facts, since it is argument and not evidence.
Plaintiff's request for sanctions is denied.
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
March 3, 2000
Page 2
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ITEM 3 99CS00504 DANA F. WINTERROWD, ET AL VS. ZURICH PERSONAL INSURANCE,ETAL
Nature of Proceeding: MOT TO SET REASONABL SUM FOR COPIES
Filed By: WINTERROWD, DANA F.
Claimant's motion to set a reasonable sum for copies of documents
provided by deposition officer Compex is GRANTED.
Claimant's motion is unopposed. California Code of Civil Procedure
section 2505.5 (a) states, in pertinent part, "[U]nless the court issues
an order to the contrary, a copy of the transcript . . . of testimony at
the deposition, if still in the possession of the deposition officer,
shall be made available by the deposition officer to any person
requesting a copy thereof upon payment of a reasonable charge set by the
deposition officer."
Respondent has submitted no evidence showing that its fees are
reasonable. Claimant has asserted that a reasonable fee should be $0.10
per standard copy, plus actual postage charges, and reasonably necessary
clerical costs at the rate of $4.00 per quarter of one hour (see also
Evidence Code section 1563). In the absence of opposition to the
contrary, the court agrees.
The reasonable charge shall be: $0.10 per standard copy, plus
actual postage charges, and reasonably necessary clerical costs at the
rate of $4.00 per quarter of one hour.
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.
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