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
Brian R. Van Camp, Judge
B. Frates, Clerk
J. Hancock, Bailiff
August 19, 2003, 09:00
ITEM 1 02AS01324 GENEVIVE GILLESPIE VS. H. LEE HORNER
Nature of Proceeding: Motion To Withdraw Atty of Rec
Filed By: T ALLMAN, GARTH T.
The motion to withdraw is unopposed and is granted. The Court will
sign the formal order submitted with the moving papers.
***
ITEM 2 02AS03236 GARY A. BANICKI, ET AL VS. DUARTE M. NEVES, ET AL
Nature of Proceeding: MOTION FOR GOOD FAITH SETTLEMENT DETERMINATION
Filed By: COTTER, BARBARA A.
Defendant Randy Stoker's motion for good faith settlement is
unopposed and is granted. The Court will sign the formal order
submitted with the moving papers.
***
ITEM 3 02AS06526 DIANA MEYERSTEIN VS. PATRICIA BRITNOFF
Nature of Proceeding: Summary Judgment
Filed By: CURTIS, LANCE J.
Defendant's motion for summary judgment is denied.
The complaint alleges one cause of action for negligence arising
from an automobile accident that occurred on June 21, 2001. Plaintiff
alleges that she engaged in settlement negotiations with defendant's
insurance carrier from January 2002 through and past June 21, 2002, and
was never advised about the statute of limitations until a letter from
defendant's insurance carrier in August 2002.
Defendant contends the complaint is barred by the statute of
limitations because her insurance carrier advised plaintiff of the
one-year limitations period in correspondence dated January 8, 2002 and
May 16, 2002. Exhibits D and F to Curtis declaration. Plaintiff's
hearsay objection to the letters is overruled as the letters are
operative facts and not subject to the hearsay rule. E.g. Weathers v.
Kaiser Foundaiton Hospitals (1971) 5 Cal.3d 98, 109. Plaintiff's
objections on the ground of lack of foundation are sustained. As the
letters constitute the only evidence submitted by defendant on the issue
of whether plaintiff was informed about the statute of limitations,
defendant has failed to meet her initial burden, and the burden does not
shift to plaintiff to produce evidence raising a triable issue of
material fact.
The Court notes that, even had the burden shifted, plaintiff's
declaration that she never received the letters is sufficient to raise a
triable issue of material fact, as the Court does not decide issues of
credibility on a motion for summary judgment.
Plaintiff shall submit a formal order complying with CCP section
437c(g) and CRC Rule 391 for the Court's signature.
Department 54
August 19, 2003
Page 2
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***
ITEM 4 02AS07370 TED COX, ET AL VS. PEPPERWOOD KNOLL APARTMENTS, ET AL
Nature of Proceeding: Motion To Strike
Filed By: HENSLEY, LAWRENCE N.
Defendants JMK Investments, Inc., Bernard F. Rubin
Trustee/Conservator and Helen Rubin Trustee/Conservator of the Bernard
F. and Helen Rubin Living Trust's motion to strike is denied.
Defendants have withdrawn their motion to strike based on the
lateness of the filing of the amended complaint. Further, plaintiffs
have stipulated to remove references to the Americans with Disabilities
Act and the Unruh Act, and request for attorney fees pursuant to CC
section 52. The remaining issue is whether references to decedent's
walking disability should be stricken because the only cause of action
that remains is negligence. The Court is persuaded that such references
are germane to the issue of whether defendants were negligent in
undertaking an accomodation to decedent.
Plaintiffs may file and serve their amended complaint (pursuant to
the above stipulation) no later than August 29, 2003.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
***
ITEM 5 03AS00534 GARY ABBOTT VS. SIERRA VISTA REGIONAL MEDICAL CENTER, ET AL
Nature of Proceeding: Demurrer
Filed By: ANDERSON, LAURA A.
Defendant Harold Segal M.D. filed a motion to change venue on the
same date as the demurrer and motion to strike. The Court's
jurisdiction was suspended until the motion to change venue was heard on
August 13, 2003, and thus plaintiff has not had sufficient opportunity
to file opposition to the demurrer and motion to strike. Therefore,
defendant is directed to obtain a new hearing date from the calendar
clerk in Dept. 54 and serve an amended notice.
Department 54
August 19, 2003
Page 3
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***
ITEM 6 03AS00534 GARY ABBOTT, VS. SIERRA VISTA REGIONAL MEDICAL CENTER,
Nature of Proceeding: MOTION TO STRIKE
Filed By: ANDERSON, LAURA A.
See ruling in item 5.
***
ITEM 7 03AS01462 KIMBERLY HOLMES VS. KENNETH M. SHENKEL
Nature of Proceeding: Motion To Compel
Filed By: SCHADE, EDWARD A.
Dropped.
***
ITEM 8 03AS01948 JAMIE HART, ET AL. VS. MERCY GENERAL HOSPITAL, ET AL.
Nature of Proceeding: MOT TO CONS PET TO COMP ARB
Filed By: PIERROU, YVONNE M.
The motion to consolidate arbitration petitions will be heard in
Dept. 47 at 9:30 a.m.
***
ITEM 9 03AS01949 BRANDON HART, ETAL VS. MERCY GENERAL HOSPITAL,ETAL
Nature of Proceeding: MOTION TO CONSOL PETITION TO COMPEL ARB
Filed By: PIERROU, YVONNE M.
The motion to consolidate arbitration petitions will be heard in
Dept. 47 at 9:30 a.m.
***
Department 54
August 19, 2003
Page 4
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ITEM 10 03AS03334 CITY OF PLEASANTON VS. CITY AND CO OF SAN FRANCISCO, ET AL
Nature of Proceeding: Demurrer
Filed By: LEE, JONATHAN U.
Defendant City & County of San Francisco's demurrer to the complaint
of plaintiff City of Pleasanton, which the court construes as a general
and special demurrer, is ruled upon as follows.
Defendant's demurrer to the first cause of action, breach of
contract, is sustained with leave to amend for failure to state facts
sufficient to constitute a cause of action. The complaint is uncertain
as to whether the contract is written, oral or implied in fact. If
written, the contract is neither alleged verbatim nor attached to the
complaint.
Defendant's demurrer to the second cause of action, promissory
estoppel, is sustained with leave to amend for failure to state facts
sufficient to constitute a cause of action. Plaintiff relies on Hilltop
Properties v. State of California (1965) 233 Cal.App.2d 349. As
defendant points out, however, in that case plaintiff's reliance on the
state's promises rendered some of his property worthless. Here,
however, although plaintiff alleges that in reliance on defendant's
promises it approved development plans, plaintiff does not allege how
that action was detrimental. Moreover, plaintiff does not allege that
the promises were made by persons authorized to contract.
Defendant's demurrer to the third cause of action, breach of
mandatory duty, is sustained with leave to amend for failure to state
facts sufficient to constitute a cause of action. Plaintiff does not
allege the basis of the duty, whether in statute or tort. If the breach
of duty is a contractual one, the claim is duplicative of the first
cause of action.
Defendant's demurrer to the fourth cause of action, constructive
trust, is sustained with leave to amend for failure to state facts
sufficient to constitute a cause of action. The complaint does not
allege fraud or breach of fiduciary duty or any other act that would
entitle plaintiff to the $126 million defendant received from the sale
of land that plaintiff alleges was owned by defendant. See Michaelian
v. State Comp. Ins. Fund (1996) 50 Cal.App.4th 1093, 1114.
Defendant's demurrer to the fifth cause of action, declaratory
relief, is sustained with leave to amend for failure to state facts
sufficient to constitute a cause of action. Given the court's ruling on
defendant's demurrer to the first cause of action, the subject matter of
a declaration is no longer present in the complaint.
Defendant's motion to strike portions of the complaint is denied.
There is no notice of motion to strike in the court file. CCP section
435.
Defendant's request for judicial notice is denied.
Plaintiff may file and serve an amended complaint no later than
August 29, 2003. Defendant may file and serve a response no later than
September 8, 2003.
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.
Department 54
August 19, 2003
Page 5
_______________
***
ITEM 11 03CS00808 THE PEOPLE OF THE CAL VS. $425.00 (CAPNTER)
Nature of Proceeding: Motion To Strike
Filed By: LEONARD, STEPHANIE
This matter is continued on the Court's own motion to August 27,
2003.
***
ITEM 12 03CS00986 IN RE: DANIEL RAY EMERST
Nature of Proceeding: Petition For Change Of Name
Filed By: EMERT, DANIEL RAY
The petition is unopposed and is granted.
***
ITEM 13 03CS01074 WALID ABOULHOSN VS. DANYAL TAUQIR JILANI
Nature of Proceeding: PETITION FOR CANCELLATIONS OF LIEN
Filed By: TROST, THOMAS G.
The petition for cancellation of mechanic's lien is unopposed and is
granted on condition that proof of service complying with CC section
3154(d) is filed prior to hearing.
***
ITEM 14 02AM01898 JERRY EDWARDS VS. JUAN SANTILLAN, ET AL
Nature of Proceeding: MOTION TO RECLASSIFY
Filed By: HENDRICKS, JONATHAN A.
Plaintiff's motion to reclassify is treated as a motion pursuant to
CCP section 403.040 and is granted subject to the procedures set forth
in CCP section 403.040 (d).
***
Department 54
August 19, 2003
Page 6
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ITEM 15 03AM00504 PRASEUTH LEE VS. CHE CHE ROOT
Nature of Proceeding: Default Hearing
Filed By: MASUDA, ROBERT
Appearance Required.
***
ITEM 16 99AM01674 MICHAEL RADU, ET AL VS. MILDRED RYLAND
Nature of Proceeding: MOTION IMPOSING TERMINATING AND MONETARY SANCTIONS
Filed By: QUADROS, RANDEL J.
Dropped.
***
