Tentative Rulings Department 54 of California August 07, 2003





                                        NOTICE                               
                                                                             
              To request a hearing on any matter on this                    
     calendar, you must call the Court at (916) 874-7848                    
     (Department 54) by 4:00 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 Ninth Street, 3rd Floor               
                             Thomas M. Cecil, Judge
                               J. Zgraggen, Clerk
                              V. Carroll, Bailiff
                             August  7, 2003, 09:00

     ITEM  1  01AS02886 ALMA TRICHE VS. RALEY'S                                     
              Nature of Proceeding: Motion To File Amended Complai     
              Filed By:                                 


     Case transferred to Department 53

                                                                             
                                                                             

     ***

     ITEM  2  01AS03700 MARK DAVID ELLIOTT VS. M.J. TRANSPORTATION, ET AL           
              Nature of Proceeding: Summary Judgment                   
              Filed By: PFEIFER, CHAD H.                               


         This matter is dropped from calendar as the case was dismissed on   
     August 1, 2003.                                                         

     ***

     ITEM  3  01AS07920 ROBERT ALAN BASSETT VS. SUTTER-DAVIS HOSPITAL, ET AL        
              Nature of Proceeding: Demurrer                           
              Filed By: DECOST, DAMIEN A.                               


         Defendant Radiological Associates of Sacramento Medical Group,      
     Inc.'s demurrer to the first amended complaint is overruled.            
                                                                             
         Although defendant did not include a demurrer with its moving       
     papers, plaintiff responds to a demurrer based on the ground that the   
     statute of limitations has run and the amendment naming defendant as DOE
     1 does not relate back to the date of the original complaint.  According
     to defendant, the amendment does not relate back because "there is no   
     way the plaintiff can argue that he had no actual or constructive       
     knowledge of [defendant's] involvement until the discovery process was  
     well underway."                                                         
                                                                             
         The court notes as a preliminary matter that "actual", not          
     "constructive," knowledge is the test and that the burden of proof is   
     defendant's.  Defendant offers first a July 7, 1999 radiological report 
     and claims that it "clearly states that professional services were      
     provided by" defendant.  The reference to defendant, however, is a      
     carbon copy notice; the "study" was interpreted by Virginia Toombs, M.D.
     Moreover, defendant does not aver by declaration or other evidence when 
     or even if this report came into plaintiff's possession.  Defendant also
     offers discovery documents which establish: on approximately April 30,  
     2002, the date of verification, plaintiff learned that Dr. Toombs was   
     not an employee of defendant Sutter-Davis Hospital; no later than       
     November 6, 2002, plaintiff learned that defendant Sutter-Davis Hospital
     understood that Dr. Toombs was employed by defendant; and on December   
     20, 2002, plaintiff requested from defendant Sutter-Davis Hospital all  
     written agreements between Sutter-Davis Hospital and defendant.         
                                                                             
         None of these documents establish that plaintiff had actual         
     knowledge of defendant's identity when he filed his complaint in        
     December 2001 on when the alleged one-year statutory period ended in    
     June 2002.  The fact that plaintiff may have been negligent in not      
     determining defendant's identity is irrelevant.  Fuller v. Tucker (2000)
     84 Cal.App.4th 1163, 1170.  Finally, defendant does not allege any      
     prejudice resulting from plaintiff's delay in filing the amendment.     
                                                                             
         Defendant's request for judicial notice of Exhibits C through E is  
     granted.  Plaintiff's requests for judicial notice are granted.         
     Defendant's counsel is reminded that memoranda in excess of 10 pages    
     must include tables of contents and authorities.  CRC rule 313.         
                                                                             
         Defendant may file and serve its answer no later than August 18,    
     2003.                                                                   
                                                                             
         This minute order is effective immediately.  No formal order        
     pursuant to CRC rule 391 or other notice is required.                   
                                                                             
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     August  7, 2003
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     ***

     ITEM  4  02AS04610 CHUN MEI DODGE VS. WASHINGTON MUTUAL BANK, ET AL.           
              Nature of Proceeding: Demurrer                           
              Filed By: CHEIT, DAVID A.                               


         Defendants' demurrer to the amended complaint filed June 18, 2003,  
     is sustained without leave to amend for failure to state facts          
     sufficient to constitute a cause of action.                             
                                                                             
         Plaintiff alleges that defendants maliciously prosecuted her in an  
     earlier action.  According to the complaint, plaintiff was criminally   
     prosecuted for unlawfully renting in violation of Sacramento County     
     Code.  The court minutes attached to the complaint cite sections        
     16.20.200(b) and 16.20.100(z).  Under section 16.20.200(z), it is       
     unlawful for an owner "or parties in interest" to rent or offer for rent
     a substandard dwelling.  Under section 16.20.100(z), a party in interest
     includes a person "in possession" of a dwelling.  The trial court       
     disposed of the earlier action when it determined that "the People      
     failed to prove beyond a reasonable doubt that [plaintiff] is a person  
     who falls with[in] the provisions of Sacramento County Code [sections]  
     16.20.200(b), 16.20.100(z) . . . ."                                     
                                                                             
         Defendants contend that the only basis for the ruling in plaintiff's
     favor was the court's determination that the People had failed to prove 
     beyond a reasonable doubt that plaintiff was "a person" under sections  
     16.20.200(b) and 16.20.100(z).  Defendants are correct.  The court      
     minutes state the factual determination that plaintiff was not "a       
     person" "amounted to an acquittal of the [plaintiff] of all charges."   
     The court also "noted that it was therefore unnecessary to reach or     
     decide several ancillary legal issues presented by the evidence."       
     Defendants also contend that plaintiff's complaint is subject to        
     demurrer if defendants can establish as a matter of law that they had   
     probable cause to believe that plaintiff was "a person," or as the code 
     defines, "in possession" of the subject dwelling.  Defendants are again 
     correct.  Lack of probable cause is a necessary element of an action for
     malicious prosecution.  Wilson v. Parker, Covert & Chidester (2002) 28  
     Cal.4th 811, 814-815.                                                   
                                                                             
         Defendants' proffer several bases to support their contention that  
     they had probable cause.  The court need consider only one.  In yet     
     another proceeding, an unlawful detainer action initiated by defendant  
     Washington Mutual Banks' predecessor in interest just prior to the date 
     plaintiff was cited in the criminal action, the trial court found that  
     plaintiff "was unlawfully in possession of the property."  Plaintiff's  
     complaint and the unlawful detainer judgment demonstrate that the       
     criminal proceeding and the unlawful detainer action concerned the same 
     property, 2300 Auburn Boulevard.                                        
                                                                             
         That finding precludes, as a matter of law, a finding in this action
     that defendants did not have probable cause to believe plaintiff was in 
     possession of the property for purposes of the criminal action.         
     Although there is not a case directly on point, the court cannot fathom 
     how the denial of a defendant's motion for summary judgment in an       
     underlying action would demonstrate probable cause and yet judgment in  
     plaintiff's favor would not.  Roberts v. Sentry Life Insurance (1999) 76
     Cal.App.4th 375, 384.  See also Fleishman v. Superior Court (2002) 102  
     Cal.App.4th 350, 355 (issuance of a preliminary injunction establishes  
     probable cause); Wilson, 28 Cal.4th at 826 (denial of SLAPP motion      
     establishes probable cause).  The fact that the unlawful detainer       
     judgment was not the underlying judgment in this action is a distinction
     without a difference.  The unlawful detainer action and the underlying  
     criminal action were contemporaneous and, as already noted, they        
     concerned the same property.                                            
                                                                             
         Plaintiff has had numerous opportunities to amend her complaint to  
     state a cause of action and has failed to do so.  Therefore, leave to   
     amend, which has not been requested, is not granted.                    
                                                                             
         Defendants' request for judicial notice is granted.                 
                                                                             
         Defendants' counsel shall prepare an order and judgment of dismissal
     for the court's signature, pursuant to CRC rule 391.                    
                                                                             
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     August  7, 2003
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     ***

     ITEM  5  02AS04610 CHUN-MEI DODGE, VS. WASHINGTON MUTUAL BANK, ET AL.          
              Nature of Proceeding: MOTION TO STAY                     
              Filed By: CHEIT, DAVID A.                               


         In a related ruling, the court sustained without leave to amend     
     defendants' demurrer to the amended complaint filed on June 18, 2003.   
     The motion for stay is therefore dropped as moot.                       
                                                                             
     f                                                                       

     ***

     ITEM  6  02AS05628 ARTUR MIRZOYAN, ET AL VS. JAMES BERTRAN MACY, ET AL         
              Nature of Proceeding: MOTION FOR ORDER TO AMEND JUDGMENT                          
              Filed By: HURSH, GARY                               


         Plaintiffs' motion to amend judgment, which is unopposed, is        
     granted.  The court will sign the amended judgment submitted.           
                                                                             
     f                                                                       

     ***

     ITEM  7  02AS05654 JENNIFER ROBINSON, ET AL VS. THOMAS TRAN                    
              Nature of Proceeding: Motion To Compel                   
              Filed By: DEBARTOLO, ELIZABETH A.                               


         Defendant's motion to compel further responses to form              
     interrogatories (set one), nos. 2.1, 2.5, 2.6, 6.5, 6.6, 8.2, 8.3, 8.4, 
     8.5, 8.6, 8.7, 8.8, and 12.1, is unopposed and is granted.  Plaintiff   
     shall serve further responses, verified and without objection, no later 
     than August 18, 2003.                                                   
         Sanctions are denied as the motion is unopposed.                    
         The minute order is effective immediately.  No formal order pursuant
     to CRC Rule 391 or further notice is required.                          
                                                                             
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     August  7, 2003
     Page  4
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     ***

     ITEM  8  02AS05764 EUGENIO LEPE VS. RAFAEL FERNANDEZ, ETAL                     
              Nature of Proceeding: MOTION FOR TERMINATING SANCTIONS                            
              Filed By: BARRETT, DAVID S.                               


         The Court has received counsel Coker's declaration signed on July 31
     and filed on August 1.  While the Court can appreciate counsel's concern
     with the alleged lack of courtesy exhibited by defendant in setting the 
     hearing for a date counsel Coker is unavailable, the fact remains that  
     plaintiff was properly served with the motion for terminating sanctions 
     and has not filed any opposition on the merits, nor has the outstanding 
     discovery been served.  Plaintiff's earlier answers were unverified.    
     Even counsel Coker's unhelpful declaration was filed late.              
                                                                             
         Defendant's motion for terminating sanctions against plaintiff      
     Eugenio Lepe is granted.  The complaint is hereby dismissed as to       
     plaintiff Eugenio Lepe.                                                 
                                                                             
         The minute order is effective immediately.  No formal order pursuant
     to CRC Rule 391 or further notice is required.                          
                                                                             
     a                                                                       

     ***

     ITEM  9  02AS06388 REGINA SCHOWENGERDT VS. AIRCO MECHANICAL, INC., ET AL       
              Nature of Proceeding: Motion To Compel                   
              Filed By: CAMPI, GARY A.                               


     Continued to 08/12/2003

         This matter is continued to August 12 to be heard with defendant's  
     motion for judgment on the pleadings.                                   
                                                                             
                                                                             

     ***

     ITEM 10  02AS06652 MULTIMEDIA SIGNUP, INC. VS. OPTEC DISPLAY, INC., ET AL      
              Nature of Proceeding: Motion To Compel                   
              Filed By: ENOS, ROBERT J.                               


         Plaintiff's motion to compel responses to special interrogatories   
     (set one) is granted.  The Court finds defendant's opposition to be     
     without substantial justification.  The arguments are hypertechnical and
     wrong.  A memorandum of points and authorities was filed with the       
     motion.  The proof of service attached to the special interrogatories is
     sufficient and, in any event, there is no question that defendants      
     received the special interrogatories and negotiated extensions of time  
     to respond without objection to the proof of service.  The notice of    
     motion identifies the party against whom sanctions are sought; that the 
     party's named is mispelled is a minor clerical error that does not      
     affect plaintiff's compliance with CCP section 2023(c).  The Court notes
     that the special interrogatories were served in January 2003; seven     
     months have elapsed without responses.  All objections are waived.      
         Plaintiff shall serve verified responses, without objection, no     
     later than August 18, 2003.                                             
         Plaintiff is awarded sanctions in the amount of $395.30 (2 hours at 
     $185 per hour plus $25.30 filing fee) against defendant Optec Displays, 
     Inc.                                                                    
         The minute order is effective immediately.  No formal order pursuant
     to CRC Rule 391 or further notice is required.                          
                                                                             
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     August  7, 2003
     Page  5
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     ***

     ITEM 11  02AS06652 MULTIMEDIA SIGNUP, INC., VS. OPTEC DISPLAY, INC. ET AL.     
              Nature of Proceeding: MOT FOR JUDG ON THE PLEAD          
              Filed By: LIOU, MAY                               


         Defendants' motion for judgment on the pleadings is granted/denied  
     as follows:                                                             
                                                                             
         First cause of action for breach of contract: granted with leave to 
     amend.  The complaint does not allege the material terms of the written 
     contracts and copies of the written contracts are not attached.         
                                                                             
         Fourth cause of action for violation of Bus. & Prof. Code section   
     17200: granted with leave to amend as to defendants Optek and Litek as  
     the complaint alleges that the individual defendants acted outside the  
     scope of their authority as agents of defendants Optek and Litek.  As to
     the individual defendants, the motion is denied as the allegations of   
     deceptive practices are sufficient to state a cause of action under     
     Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co.     
     (1999) 20 Cal.4th 163, 187, fn. 12 (competitors may allege other kinds  
     of unfair competition, such as fraudulent business practices or         
     deceptive advertising).                                                 
                                                                             
         Fifth cause of action for interference with prospective economic    
     advantage: granted with leave to amend as to defendants Optek and Litek 
     for the reasons set forth above. Denied as to the individual defendants,
     as the complaint alleges interference with customer relationships       
     through the independent wrong of deception.                             
                                                                             
         Sixth cause of action for fraud: granted with leave to amend as to  
     all defendants.  The complaint fails to allege with specificity facts   
     showing how, when, where, to whom and by what means the representations 
     were tendered, and the authority of the individual defendants to speak. 
     Lazar v. Superior Court (1996) 12 Cal.4th 631, 644-645.                 
                                                                             
         Seventh cause of action for injunctive relief: denied.  The cause of
     action for unfair competition survives as to some defendants, and the   
     specific relief requested is set forth in the prayer.                   
                                                                             
         An amended complaint may be filed and served no later than August   
     18, 2003.                                                               
                                                                             
         The minute order is effective immediately.  No formal order pursuant
     to CRC Rule 391 or further notice is required.                          
                                                                             
     a                                                                       



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     August  7, 2003
     Page  6
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     ***

     ITEM 12  03AS01258 SANTA CRUZ MEDIA, INC. VS. ST. JOSEPH HOLDINGS, ET AL       
              Nature of Proceeding: Motion To Compel                   
              Filed By: FAVOR, J. MICHAEL                               


         Appearance required.                                                
                                                                             
         The Court is inclined to grant plaintiff's motion to compel further 
     responses and overrule defendants' objection based on clergy-penitent   
     privilege as to those documents generated by defendants.  Defendants'   
     responses identifying documents subject to the privilege indicate that  
     some of the documents were generated by clergy and diocesan officials.  
     As the clergy-penitent privilege may be claimed by the clergy as well as
     the penitent, the Court is concerned that the clergy who generated some 
     of the documents have not received notice of this motion to compel their
     disclosure.  The parties are invited to address this concern at the     
     hearing.                                                                
                                                                             
         The following explains the Court's tentative position on the        
     documents generated by defendants.                                      
                                                                             
         The court has reviewed in detail the declarations of defendants, Mr.
     and Mrs. Schirmer, concerning the asserted clergyman-penitent privilege 
     (Evidence Code section 1033) as well as the arguments related to that   
     privilege.                                                              
                                                                             
         Under the circumstances as disclosed by defendants, the court finds 
     plaintiffs' position to be persuasive.  Evidence Code section 1033      
     expressly precludes the sharing of allegedly confidential communications
     with any other party, as does the marital communication privilege       
     (Evidence Code section 980).  Disclosure to a third person vitiates the 
     privilege.  Had the Legislature wanted to adopt a statutory scheme that 
     would embrace the interpretation urged by defendants, a review of       
     Evidence Code section 1012 amply demonstrates their ability to do so.   
     The Legislature, knowing how to preserve a confidential communication   
     made in the presence of  "others" has not opted to enlarge the scope of 
     either of the aforementioned privileges.                                
                                                                             
         Moreover, the language of paragraph 8 of the declarations submitted 
     by the Schirmers ("this entire situation would be handled               
     confidentially") is problematic.  One can reasonably infer that the     
     recipient of the information (the clergy) was expected to act on the    
     information, perhaps vitiating the privilege by sharing the information 
     with others.  One can also reasonably infer that in whole or in part,   
     the writings at issue do not relate to penitential matters involving    
     confession and absolution, but rather to a reporting of alleged         
     misconduct of Corapi or, as urged by plaintiffs, complaints about the   
     business practices of Corapi.  People v. Edwards (1988) 203 Cal.App.3d  
     1358, 1362-1363 (communication with clergyman seeking counseling and not
     absolution was not within penitent-clergy privilege); People v. Thompson
     (1982) 133 Cal.App.3d 419, 427 (purpose of penitent-clergy privilege is 
     to meet "human need to disclose to a spiritual counselor, in total and  
     absolute confidce, what are believed to be flawed acts or thought and to
     receive priestly consolation and guidance in return).                   
                                                                             
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     August  7, 2003
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     ***

     ITEM 13  03AS01630 ANTHONY ANDRE SHARP VS. JOSEPH BICK, ET AL                  
              Nature of Proceeding: MOT FOR PERSL APPR TO HRG ON REQ FOR CRT ORDER AND INJ ORDER
              Filed By: SHARP, ANTHONY A.                               


         The motion is dropped.  There is no proof of service of the motion  
     in the court file.                                                      

     ***

     ITEM 14  03AS01630 ANTHONY ANDRE SHARP, VS. JOSEPH BICK, ET AL.                
              Nature of Proceeding: MT FOR ADDTL WITNESSES             
              Filed By: SHARP, ANTHONY ANDRE                               


         The motion is dropped.  There is no proof of service of the motion  
     in the court file.                                                      

     ***

     ITEM 15  03AS01630 ANTHONY SHARP, VS. JOSEPH A BICK, ET AL.                    
              Nature of Proceeding: MTN TO REQ HRG DATE ON MTN FOR WITN
              Filed By: SHARP, ANTHONY A.                               


         The motion is dropped.  There is no proof of service of the motion  
     in the court file.                                                      

     ***

     ITEM 16  03AS01630 ANTHONY SHARP, VS. JOSEPH A. BICK, ET AL.                   
              Nature of Proceeding: MOTION FOR INJUNCTIVE ORDER        
              Filed By: SHARP, ANTHONY A.                               


         The motion is denied.  Plaintiff cites no authority under which this
     court might issue an order or conduct by defendant that would confer    
     standing on plaintiff to seek the requested relief.                     
                                                                             
         This minute order is effective immediately.  No formal order        
     pursuant to CRC rule 391 or other notice is required.                   
                                                                             



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     August  7, 2003
     Page  8
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     ***

     ITEM 17  03AS01630 ANTHONY SHARP, VS. JOSEPH A. BICK, ET AL.                   
              Nature of Proceeding: MOT FOR INJUNCTIVE ORD/HRG CRT     
              Filed By: SHARP, ANTHONY                               


         The motion is dropped.  There is no proof of service of the motion  
     in the court file.                                                      

     ***

     ITEM 18  03AS01630 ANTHONY SHARP, ET AL. VS. JOSEPH A. BICK, ET AL.            
              Nature of Proceeding: MOT REQ FOR PERSL APPR             
              Filed By: SHARP, ANTHONY A.                               


         The motion is dropped.  There is no proof of service of the motion  
     in the court file.                                                      

     ***

     ITEM 19  03AS01630 ANTHONY SHARP, VS. JOSEPH A. BICK, ET AL.                   
              Nature of Proceeding: MOT OF WITN TO BE SUBP             
              Filed By: SHARP, ANTHONY A.                               


         The motion is dropped.  There is no proof of service of the motion  
     in the court file.                                                      

     ***

     ITEM 20  03AS01630 ANTHONY SHARP, VS. JOSEPH A. BICK, ET AL.                   
              Nature of Proceeding: MOT REQ SUBPOENA OF WITNESS        
              Filed By: SHARP, ANTHONY A.                               


         The motion is dropped.  There is no proof of service of the motion  
     in the court file.                                                      

     ***



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     August  7, 2003
     Page  9
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     ITEM 21  03AS01630 ANTHONY SHARP, VS. JOSEPH A. BICK, ET AL.                   
              Nature of Proceeding: MOT OF ADD'L WITN/TR AS HOSTLE     
              Filed By: SHARP, ANTHONY A.                               


         The motion is dropped.  Service of the motion was by plaintiff and  
     therefore did not comply with applicable Code of Civil Procedure        
     sections.  See, e.g., CCP section 1013a.                                

     ***

     ITEM 22  99AS01722 DIANE FARIA, ET AL VS. SEQUOIA EQUITIES FAIRWAYS, ET AL     
              Nature of Proceeding: Motion To Compel                   
              Filed By: KAHN, KAREN H.                               


     Continued to 08/15/2003

                                                                             
                                                                             

     ***

     ITEM 23  02AM07862 AMERICAN EXPRESS TRAVEL VS. BERNADETTE HILLEN               
              Nature of Proceeding: MOT TO FIX AMOUNT OF ATTORNEYS FEES AWARDBLE AS ITEM OF CSTS
              Filed By: GOLDEN, RICHARD E.                               


         Plaintiff's motion to fix amount of attorney fees, which is         
     unopposed, is granted in the amount of $1,185.  Defendant Bernadette    
     Hillen shall pay $1,185 to plaintiff American Express Travel Related    
     Services Company, Inc.                                                  
                                                                             
         The notice of motion does not provide notice of the court's         
     tentative ruling system as required by Local Rule 3.04(D).  Moving      
     counsel is directed to contact opposing counsel forthwith and advise    
     them of Local Rule 3.04 and the court's tentative ruling procedure and  
     the manner of requesting a hearing.  Moving counsel is ordered to appear
     in person or by telephone in the event that opposing counsel appears for
     the hearing without prior request.                                      
                                                                             
         This minute order is effective immediately.  No formal order        
     pursuant to CRC rule 391 or other notice is required.                   
                                                                             
     f                                                                       



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     August  7, 2003
     Page 10
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     ***

     ITEM 24  03AM01834 LAW OFFICES OF ARTHUR M. TRAUGH VS. LEONARD PETERS          
              Nature of Proceeding: Default Hearing                    
              Filed By:                                


         Appearance required.                                                
                                                                             

     ***