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
P. Allen, Clerk
S. Hudson, Bailiff
March 10, 2000, 09:00
ITEM 1 97AS03530 SUSAN LAWRENCE-MCALLISTER, ET AL VS. JOHN GILILLAND, ET AL
Nature of Proceeding: SUMMARY JUDGMENT
Filed By: DANIELS, DAVID M.
The motion for summary judgment of defendant Mercy San Juan Hospital
is denied. Although plaintiff objects to nearly every detail of
defendant's moving papers, the separate statement of fact and supporting
evidence are adequate. (The court notes that plaintiff as well as
defendant has failed to comply with Rule of Court 342.) Defendant
established by admissible evidence that the defendant doctors were not
agents or employees of this defendant, and that the care provided while
plaintiff was at Mercy met the applicable standard of care. This is
sufficient to shift the burden to plaintiff to create a triable issue of
material fact. Plaintiff concedes that defendant doctors were not
agents or employees of Mercy. Plaintiff's expert declaration
establishes that there is a triable issue of material fact as to whether
or not the applicable standard of care was met. Both sides'
declarations are in the whole adequate under Kelly v. Trunk, although
portions of the declaration of Cutler are without evidentiary
foundation. (For example, the statement that the patient was in
"shock".) Plaintiff has thus created a triable issue of material fact
that defeats summary judgment.
Defendant's objections to the findings and deficiencies of the
California Dept. of Health are sustained. Defendant's objections to the
plaintiff's separate statement need not be ruled on as the separate
statement does not constitute evidence; to the extent defendant is
objecting to the supporting declaration of Cutler, the objections to
page 12, lines 12-15 are sustained, all others are overruled.
Plaintiff's objections to the declaration of Kelly are not relevant on
an expert's declaration or to the court's determination of the material
issue on summary judgment, and the court declines to rule on these
objections. The court reminds both sides that a qualified expert's
declaration is supposed to express opinon and conclusions as to the
standard of care.
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 10, 2000
Page 2
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ITEM 2 97AS06708 CITY OF OAKLAND, ET AL VS. OAKLAND RAIDERS, ET AL
Nature of Proceeding: MOT TO COMPEL(10)/DEMURRER/MISC(5)
Filed By: GONZALEZ, ARTURO J.
The following motions are continued by stipulation of the parties to
March 24, 2000: (1) Raiders' motion to compel further responses by
Arthur Andersen to Raiders' discovery requests; and (2) Arthur
Andersen's motion to compel further responses by Raiders to inspection
demands.
The following motions are continued by stipulation of the parties to
March 31, 2000: (1) Raiders' motion to compel further responses by
DeSilva to Raiders' discovery requests; (2) DeSilva's motion to compel
further responses by Raiders to interrogatories and documents requests;
and (3) DeSilva's motion for issue sanctions or, in the alternative, to
compel responses by Raiders to interrogatories and production of
documents.
The following motions are continued on the Court's own motion to
March 24, 2000, unless the Court establishes other procedures for ruling
on these matters prior thereto: (1) Plaintiffs' motion to compel
further responses to document demands and the production of documents,
special and form interrogatories and requests for admission and for
leave to reopen Kosarzycki deposition; (2) Plaintiffs' motion for issue
or evidence sanctions, or alternatively, to compel a further response to
interrogatory no. 64, to compel depositions of Raiders PMK and two
limited partners; (3) Raiders' motion to compel further responses by
East Bay Entities to Raiders' discovery requests; (4) Raiders' motion
for evidence sanctions against East Bay Entities; (5) DeSilva's motion
to dismiss cross-complaint as to DeSilva or strike thirteenth cause of
action or for issue or evidence sanctions.
DeSilva's motion to compel compliance with Ernst & Young Subpoena
Duces Tecum is granted. The subpoened documents and privilege log shall
be produced no later than March 20, 2000.
DeSilva's motion for leave to take the deposition of Elizabeth Ury
after discovery cut-off is denied. There is no evidence that the
witness will not voluntarily give a statement to counsel or appear for
trial.
DeSilva's motion to compel the deposition of Bruce A. Miller with
production of documents is granted.
DeSilva's motion to compel the deposition of Bruce Allen is granted,
but is limited to questions that do not duplicate questioning at the
prior deposition.
DeSilva's motion to compel PMK deposition is granted, but is limited
to questions that do not duplicate questions asked at any prior
deposition. Raiders shall designate the person(s) most knowledgeable on
the matters set forth in the joint deposition notice no later than March
20, 2000.
The Raiders' motion to extend time limits on deposition discovery,
compel attendance at deposition, and compel production of documents at
deposition is granted/denied as follows:
Granted as to the depositions of Deena McClain, M. Friedman, Michael
Miller, Ed DeSilva, J. Van Austen, Scott Baker, Les Young, and Ron
Tutor.
Granted as to deposition of Ernie Lampkin, but denied as to
associated document requests (overbroad).
Denied as to the deposition of Z. Abraham and associated document
requests; deposition of PMK from City of Oakland and OACC regarding
Perata letter; production of ZIA index; deposition of Everett Harry and
associated document requests (the circumstances under which court
allowed deposition in St. Mary Medical Center v. Superior Court (1996)
50 Cal.App.4th 1531 are not present here).
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
March 10, 2000
Page 3
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ITEM 3 98AS00220 LANCE GRANT, ET AL VS. CLARK & MCGRATH CONSTRUCTION CO, INC.
Nature of Proceeding: MOTION TO SET ASIDE DEFAULT
Filed By: LUNDRY, GARY F.
Defendant Nor-Cal Lath and Plastering's motion to set aside entry of
default is unopposed and is granted. The Court notes that
correspondence in the file indicates the consolidated cases have been
settled.
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 4 99AS01142 ROB MANNE, ET AL VS. REINHARDT HILZINGER, M.D., ET AL
Nature of Proceeding: SUMMARY JUDGMENT
Filed By: CLARK, SARA A.
This matter is dropped as the case has been dismissed.
***
ITEM 5 99AS03962 EVAN ENGLISH VS. IKON BUSINESS SOULUTIONS, INC. ET AL
Nature of Proceeding: MOTION TO COMPEL (2)
Filed By: NAFTEL, JEREMY T.
Dropped.
***
ITEM 6 99AS04846 MELADEE MCCARTY VS. BANK OF LODI NATIONAL ASSOCIATION
Nature of Proceeding: MOTION TO COMPEL
Filed By: ZOVOD, SHAWN J.
Defendant has withdrawn its motion to compel responses to demand for
production of documents and special interrogatories, but not its motion
for sanctions. The motion for sanctions is denied, as plaintiff did not
oppose the motion to compel discovery. The only basis for an award of
sanctions for failure to respond to discovery (as opposed to failure to
comply with a court order compelling responses to discovery) is to make
or oppose a motion to compel without substantial justification. CCP
2030(k); 2031(l); 2023(b)(monetary sanctions may be imposed pursuant to
section 2023 "to the extent authorized by the section governing any
particular discovery method...").
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
March 10, 2000
Page 4
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ITEM 7 99AS05322 A.T.I.,L.L.C. VS. JOHN DALE SMITH
Nature of Proceeding: DEMURRER
Filed By: PLEFKA, MICHAEL J.
Dropped.
***
ITEM 8 99AS06262 JEANETTE APPLON VS. CITY OF SACRAMENTO, ET AL.
Nature of Proceeding: DEMURRER
Filed By: HICKS, GERALD C.
Dropped.
***
ITEM 9 98AM08810 HURLEY STATE BANK, ET AL VS. FRED L. MALDONADO, ET AL
Nature of Proceeding: CLAIM OF EXEMPTION
Filed By: MEYERS, STUART D.
The claim of exemption is denied.
***
ITEM 10 99AM05618 FIREMANS FUND VS. RIVER CITY MAINTENANCE, INC.
Nature of Proceeding: MOTION TO WITHDRAW ATTY OF REC
Filed By: LEE, CHRISTOPHER A.
The motion to withdraw is denied without prejudice as counsel's
declaration does not set forth facts regarding the client's current
address. CRC Rule 376(c); Local Rule 3.10(B). If the current address
is unknown, counsel shall serve the moving papers on the Clerk pursuant
to CCP 1011(b) and CRC Rule 202.5.
The Court notes that the notice of motion does not contain notice of
the Court's tentative ruling system as required by Local Rule 3.04(D).
Counsel is directed to inform the client that no hearing will take place
on the date and time set forth in the notice.
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 other than as stated above.
Department 54
March 10, 2000
Page 5
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