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
Susan Hudson, Bailiff
May 19, 2000, 09:00
ITEM 1 00AS00010 MICHAEL HORNER, ET AL VS. LIQUI-BOX COPR., ET AL
Nature of Proceeding: DEMURRER
Filed By: POST, CHARLES L.
Continued to 06/08/2000
***
ITEM 2 00AS00146 DONALD HEILIG VS. JATIN SINGH DEOL, ET AL
Nature of Proceeding: MOTION FOR GOOD FAITH SETTLEMENT
Filed By: FLUSS, ISAAC
The motion for good faith settlement is denied. Plaintiff has failed to
carry his burden of showing the Tech-Bilt factors have been met.
Although a bare bones motion is sufficient if not opposed, in this case
opposition has been filed.
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.
***
ITEM 3 00AS00769 EDDIE CUEVAS VS. NELLIE PATINO, ET AL
Nature of Proceeding: PETIT TO COMPEL/MOT TO APPT/STAY
Filed By: SERLIN, MARK A.
The motion to appoint a receiver is granted. No opposition to the
request has been filed. Robert C. Greeley is appointed receiver. Mr.
Greeley is to file a receiver's bond in the amount of $5,000.
The petition to compel arbitration is granted. No opposition to the
petition has been filed.
The request to stay this action is denied. The arbitration provision
provides that the decision of the arbitration panel shall not be binding
on the Partners and shall in no way prejudice any rights they may have
to pursue all available legal and equitable remedies. The Partners have
agreed that this action can continue while arbitration takes place.
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.
Department 54
May 19, 2000
Page 2
____________
***
ITEM 4 97AS02034 GURMANT KUMAR VS. ANIL KISHORE
Nature of Proceeding: MOTION TO COMPEL
Filed By: WARWICK, L. ALAN
Defendant's motions are granted.
Plaintiff is ordered to serve full and complete answers, without
objections, to defendant's Form Interrogatories, set two and Special
Interrogatories, set one, no later than Monday, May 29th, 2000.
Defendant's Request for Admissions, set one, is deemed admitted.
Mandatory sanctions of $220 are awarded to defendant from plaintiff.
C.C.P. 2033.
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.
***
ITEM 5 98AS03450 MARLENE LEORNA VS. JEFF SYMONS, ET AL
Nature of Proceeding: APPLICATION FOR GOOD FAITH SETTLEMENT
Filed By: FOX, MICHAEL A.
The application for good faith settlement is denied. According to
plaintiff's counsel, plaintiff's last communication to counsel was to
advise she was not agreeable to the proposed settlement. Without a
settlement, the Court obviously cannot decide if it is in good faith.
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.
***
ITEM 6 99AS01640 NEW HERITAGE VILLA, LLC. VS. HOME SAVINGS OF AMERICA, FSB
Nature of Proceeding: SUMMARY JUDGMENT
Filed By: CHEIT, DAVID A.
The motion for summary judgment by defendant Washington Mutual Bank is
granted. Defendant has shown there are no triable issues of material
fact and they are entitled to judgment as a matter of law.
The Court has received an ex parte communication on Monday, May 15th,
2000, from Chun Mei Dodge, on behalf of plaintiff, to continue the
hearing of the motion for summary judgment and to continue the trial
date. Any opposition to the motion for summary judgment was due Friday,
May 5th, 2000. Such opposition could have contained a request, pursuant
to C.C.P. 437c)(h) to continue the motion for summary judgment. The
ex parte request to continue the hearing date for the motion for summary
judgment, and the trial date, is untimely. Furthermore, requests to
continue trial dates are heard before the Presiding Judge.
This minute order is effective immediately.
Department 54
May 19, 2000
Page 3
____________
***
ITEM 7 99AS02644 EMORY G. WEST VS. ANTONIO PREVEDELLO, ET AL
Nature of Proceeding: SUMMARY JUDGMENT
Filed By: CARLI, MICHELE A.
The motion for summary adjudication of the tenth affirmative defense is
denied. There are triable issues of material fact as to whether the
Stockton and Gerber properties were to be sold together, whether Mr.
Griffin knew, prior to signing Counter Offer #5, that the Stockton
property contract stated both properties were to be sold together, and
therefore whether plaintiff accepted Counter Offer #5. See facts set
forth in Defendants' Response to Plaintiff's Undisputed Facts ##1 and
29.
The parol evidence rule provides that "when the parties to a written
contract have agreed to it as an integration--a complete and final
embodiment of the terms of an agreement--parol evidence cannot be used
to add to or vary its terms." The "crucial issue in determining whether
there has been an integration is whether the parties intended their
writing to serve as the exclusive embodiment of their agreement."
Extrinsic evidence can be used to determine the parties intent and to
prove the existence of a separate oral agreement as to any matter on
which the document is silent and which is not inconsistent with its
terms. Masterson v Sine (1968) 68 C.2d 222, 225-228, FPI Development,
Inc. v Nakashima (1991) 231 C.A.3d 367, 394, Birsner v Bolles (1971) 20
C.A.3d 635. In our case, plaintiff argues the Gerber contract does not,
on its face, indicate the properties are to be sold together.
Defendants have presented the following evidence: plaintiff's agent was
told the properties were to be sold together; all offers and
counter-offers for the purchase of the properties were made at the same
time; when Counter-offer #5 was given to Mr. Griffin, the Stockton
property contract, which contained language that the properties were to
be sold together, was placed on top of the Gerber property contract.
This evidence does not specifically vary any terms of the contract. It
is therefore admissible and, as set forth above, creates a triable issue
of material fact. Defendant provides evidence that a collateral oral
agreement, as set forth above, was entered into by the parties. This
oral agreement is credible if it might naturally have been made as a
separate agreement by parties similarly situated. Masterson, supra, at
p. 228. In view of the context in which the offers and counter-offers
were made, the collateral agreement was one that might naturally have
been made without embodiment in the earlier writings. Evidence
regarding this agreement is therefore not barred by the parol evidence
rule.
The motions for summary adjudication of the seventh and ninth
affirmative defenses are granted. Plaintiff has shown these affirmative
defenses have no merit.
This minute order is effective immediately.
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
May 19, 2000
Page 4
____________
***
ITEM 8 96AM07862 JOYCE BROUSSARD VS. WENDY ALISON MILLAR, ET AL
Nature of Proceeding: MOTION FOR ENTRY OF JUDGMENT
Filed By: BRAUNSTEIN, JERROLD B.
The motion to enter judgment pursuant to C.C.P. 664.6 is denied.
According to the papers, defendant was not present at the settlement.
Her carrier, by and through an individual representative, agreed to the
settlement. However, in order to be enforceable under 664.6, the
defendant must personally agree to the settlement. Levy v Superior
Court (1995) 10 C.4th 578, Cortez v Kenneally (1996) 44 C.A.4th 523.
The request for sanctions pursuant to C.C.P. 128.5 is denied as that
code section is only applicable to actions filed prior to December 31,
1994.
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.
***
ITEM 9 99AM01622 HOMEWOOD BLDG SPLY, INC., ET AL VS. TRINITY BUILDERS, ET AL
Nature of Proceeding: MOTION TO VACATE DEFAULT
Filed By: RIMMER, KIRK S.
This matter was continued to allow the parties to submit further
evidence. The only additional evidence submitted is a declaration of
Duane W. Purdue, submitted by plaintiff. The Court finds that the
Purdue declaration is in proper form, and establishes that defendant
Eugene Gillespie was in fact served with the summons and complaint. As
there is no evidence of attorney fault, the mandatory provisions of CCP
section 473 do not apply. The Court finds that moving defendant has not
met the requirements of section 473 for discretionary relief from
default, and therefore the motion is denied.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 is required, nor further notice of the order.
***
Department 54
May 19, 2000
Page 5
____________
ITEM 10 99AM01623 HOMEWOOD BLDG SPLY, INC., ET AL VS. TRINITY BLDRS, ET AL
Nature of Proceeding: MOT TO VACATE DEFAULT JUDGMENT
Filed By: RIMMER, KIRK S.
This matter was continued to allow the parties to submit further
evidence. The only additional evidence submitted is a declaration of
Duane W. Purdue, submitted by plaintiff. The Court finds that the
Purdue declaration is in proper form, and establishes that defendant
Eugene Gillespie was in fact served with the summons and complaint. As
there is no evidence of attorney fault, the mandatory provisions of CCP
section 473 do not apply. The Court finds that moving defendant has not
met the requirements of section 473 for discretionary relief from
default, and therefore the motion is denied.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 is required, nor further notice of the order.
***
ITEM 11 99AM01624 HOMEWOOD BLDG SPLY, INC., ET AL VS. TRINITY BUILDERS, ET AL
Nature of Proceeding: MOTION FOR VACATING DEFAULT
Filed By: RIMMER, KIRK S.
This matter was continued to allow the parties to submit further
evidence. The only additional evidence submitted is a declaration of
Duane W. Purdue, submitted by plaintiff. The Court finds that the
Purdue declaration is in proper form, and establishes that defendant
Eugene Gillespie was in fact served with the summons and complaint. As
there is no evidence of attorney fault, the mandatory provisions of CCP
section 473 do not apply. The Court finds that moving defendant has not
met the requirements of section 473 for discretionary relief from
default, and therefore the motion is denied.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 is required, nor further notice of the order.
***
Department 54
May 19, 2000
Page 6
____________
ITEM 12 99AM09630 MERCHANTS NATNL BANK OF SAC. VS. WILLIAM J. HUTCHINGS, ETAL
Nature of Proceeding: DEFAULT HEARING
Filed By: RIES, DEBRA D. ROBERTS
Appearance required.
***
