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
B. Baldy, Clerk
S. Hudson, Bailiff
March 16, 2000, 09:00
ITEM 1 97AS04100 GERARDO SOLORIO, ET AL VS. AERIAL DEVICES, INC., ET AL
Nature of Proceeding: SUMMARY JUDGMENT (2)
Filed By: BARBER, STEPHAN A.
As to these cross-motions for summary judgment, the court grants the
motion of Lift-All and denies the motion of Rochester. Rochester's
invoice constituted a written confirmation of Lift-All's offer to
purchase goods within the meaning of California Commercial Code section
2207. Comment 4 to UCC 2-207, incorporated without change into
California's section 2207, defines material alteration as a clause which
alters the contract and so results in surprise or hardship if
incorporated without express awareness by the other party. "Material
alteration" is a question of fact. On the stipulated facts, the court
finds that the indemnification provision at issue here materially alters
the basic agreement of the parties, which was to purchase and to sell
wire rope. (See, also, e.g., Diamond Fruit Growers v. Krack Corp. (9th
Cir. 1986) 794 F.2d 1440; Trans-Aire Int'l v. Northern Adhesive Co. (7th
Cir. 1989) 882 F.2d 1254 and annotations to UCC 2-207 and Commercial
Code section 2207.)
The cases upon which Rochester relies are distinguishable - they
involve disputes about liability limitations contained within
shipping/delivery service contracts. Such limitations are inherent in
that type of contract, and in any event are not covered by section 2207.
The present case involves an invoice for the sale of goods containing a
broad-ranging indemnification provision. Rochester has cited no cases
which go so far as to find that a binding contract exists which imposes
all obligations, no matter what the nature, inserted by one party onto
the back of an invoice. Lift-All's hearsay objection to paragraph 14 of
the invoice is overruled.
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 16, 2000
Page 2
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ITEM 2 97AS06380 JAMES E. MOORE, ET AL VS. STANTON, KAY & WATSON, ET AL
Nature of Proceeding: SUMMARY JUDGMENT (2)
Filed By: GURNEE, STEVEN H.
The motions of defendants Rummonds, Williams & Mair and James S.
Rummonds (collectively, Rummonds) and Stanton, Kay & Watson for summary
judgment against plaintiff James E. Moore are granted.
The Complaint alleges a single count for professional negligence
based on the mandatory dismissal of the underlying action for failure to
bring it to trial within five years (CCP 583.360). All defendants
contend that they are entitled to judgment against plaintiff Moore
because he has no standing to pursue this litigation. As the moving
papers and opposition all concern the same issue, they are all
considered together for the purposes of ruling on this motion.
Defendants have produced undisputed evidence that Moore disclaimed
any individual interest in the real property that was the subject of the
dispute in the underlying action. The disclaimers include judicial
admissions in the quiet title action and in the underlying action. It
is also undisputed that the contract for the real property was between
only the S.J.M. Limited Partnership and the Morgans (i.e. Moore was not
a party). And finally it is undisputed that Moore's individual claims
against the Morgans in the underlying action were all dismissed pursuant
to rulings on demurrer and motion to strike. This evidence is
sufficient to meet defendants' initial burden of showing they are
entitled to judgment on the ground that Moore is not a real party in
interest in this litigation.
The burden shifts to plaintiff Moore to produce evidence raising a
triable issue of material fact as to whether Moore has standing to
pursue this action. Moore contends that he has an individual interest
in the real property by virtue of his status as a limited partner and
general partner in the S.J.M. partnership. However, Moore's interest is
in the partnership, not the property. His interest as a general partner
is the right to bring an action on behalf of the partnership; his
interest as a limited partner is the right to receive profits and
surpluses. When a partnership has a claim, the real party in interest
is the partnership, not the individual partners. Wallner v. Parry
Professional Bldg. Ltd. (1994) 22 Cal.App.4th 1446, 1449. (The
exception for derivative claims does not apply here.)
Moore further contends that defendants may not assert estoppel based
on judicial admissions because they did not plead this theory as an
affirmative defense. However, estoppel based on a party's prior
statements made in judicial proceedings is not an affirmative defense;
rather, it is a conclusive concession of the truth of a matter resulting
in removal of that matter from issue. The affirmative defense of
estoppel consists of statements that mislead another party to their
detriment. See, e.g., Jackson v. County of Los Angeles (1997) 60
Cal.App.4th 171, 181-183.
The Court finds that Moore has not produced evidence raising a
triable issue of material fact.
Counsel for each moving party shall pay $50 sanctions to the County
of Sacramento for the benefit of the County Law Library fund for
violation of Local Rule 3.04(D), which requires notice of the court's
tentative ruling system in the notice of motion.
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 16, 2000
Page 3
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ITEM 3 98AS05138 KAREN MCLAUGHLIN VS. COSTCO, ET AL
Nature of Proceeding: SUMMARY JUDGMENT
Filed By: GRAJSKI, MARK P.
Continued to 03/23/2000
***
ITEM 4 98AS05148 BILLY PERRY VS. TOTAL RENAL CARE, ET AL
Nature of Proceeding: MOTION FOR ORDER THAT LIEN IS INVALID
Filed By: WITTE, THOMAS M.
The motion for order that lien is invalid is dropped as it was not
served in a timely manner pursuant to CCP 1005 and CRC 317. The Court
does not have jurisdiction to rule on a motion that is not timely
served. Lee v. Placer Title Co. (1994) 28 Cal.App.4th 503, 509, 511.
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ITEM 5 97AM07468 MARILYN ODOM VS. GLORIA THOMAS
Nature of Proceeding: MOTION TO WITHDRAW ATTY OF REC
Filed By: SEREMAK, JANUSZ
The motion to withdraw is granted. Counsel shall submit a formal
order complying with CRC Rule 376(d).
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ITEM 6 99AM01738 AMERICAN RELIABLE INSURANCE VS. KENNETH GOEDON MURRAY, ET AL
Nature of Proceeding: CLAIM OF EXEMPTION
Filed By: BOOSKA, STEVEN A.
In the absence of an appearance at the hearing, the wage garnishment is
set at $50.00 per week. If there is an appearance at the hearing, the
burden of proof is on the debtor.
Department 54
March 16, 2000
Page 4
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ITEM 7 99AM02880 PLACER CREDITORS BUREAU VS. TERRI L. MANCINO
Nature of Proceeding: CLAIM OF EXEMPTION
Filed By: LEE, WARREN R.
As this debt is for necessaries of life, namely medical services, the
claim of exemption must be denied. The exemption statute does not apply
to this debt.
***
ITEM 8 99AM07265 CHARLES STRECKER VS. JULIUS ENGEL, ET AL
Nature of Proceeding: DEMMURRER
Filed By: ROSENBERG, SID M.
Continued to 03/27/2000
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