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
Joe S. Gray, Judge
S. Meeker, Clerk
Vivian Carroll, Bailiff
February 5, 2003, 09:00
ITEM 1 01AS02462 DANNY W. GALYEAN VS. VISION FS., INC., ET AL
Nature of Proceeding: Motion To Compel
Filed By: C HERONES, NICOLE
Defendants' motion for order compelling compliance with court order
and for sanctions is granted as follows. Defendants are awarded
monetary sanctions in the amount of $1,275 against plaintiff Danny W.
Galyean.
The request for evidence, issue and/or terminating sanctions is
denied. The Court may not impose discovery sanctions as a punishment,
or sanctions that place the moving party in a better position than it
would have been if the discovery had been provided. Puritan Ins. Co. v.
Superior Court (1985) 171 Cal.App.3d 877, 884 (terminating sanction
improper when it placed other party in more favorable position that it
would have been if the missing evidence had been available at trial);
Caryl Richards, Inc. v. Superior Court (1961) 188 Cal.App.2nd 300,
304-305 (terminating sanction is abuse of discretion when evidentiary
sanction would give the moving party the benefit of everything it might
have had from the discovery sought). As plaintiff has partially
responded to the outstanding discovery, defendants have not shown that
further responses favorable to them would support a judgment in their
failure as would be required to impose a terminating sanction.
Defendants have also not provided to the Court a proposed evidence or
issue sanction based on the outstanding discovery.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
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Department 54
February 5, 2003
Page 2
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ITEM 2 01AS05218 BEVERLY FAYE HOLLIMAN VS. CHRISTOPHER DAVID AMATO
Nature of Proceeding: Motion To Compel
Filed By: SAVA. SANDRA L.
Plaintiff's motion to compel further responses to special
interrogatories nos. 22, 24, and 25 is granted. Defendant's objections
to these interrogatories are overruled. The motion is denied with
respect to interrogatory no. 23; defendant's objections that this
interrogatory is vague and ambiguous are sustained.
Defendant shall serve further responses, verified and without
objection, no later than February 18, 2003.
Plaintiff is awarded sanctions in the amount of $1,125 against
defendant and his attorney of record, jointly and severally.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
***
ITEM 3 01AS07810 DOROTHY JONES VS. DEPARTMENT OF GENERAL SERVICES, ET AL
Nature of Proceeding: Motion To Compel
Filed By: JENKS, BARTON R.
Defendant's motion for order compelling plaintiff to appear for
deposition is unopposed and is granted. Plaintiff shall appear for
deposition on February 7, 2003, at the time and place set forth on the
deposition notice served on January 14, 2003.
Defendant is awarded mandatory sanctions pursuant to CCP section
2033(k) in the amount of $440.00 against plaintiff.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
***
ITEM 4 02AS01882 CURT MCMICHAEL, ET AL VS. JERRY E. NORD, ET AL
Nature of Proceeding: PET TO ENF COMPRMSE AND SETTLEMENT
Filed By: MIKACICH, JAMES L.
The cross motions to compel enforcement of settlement agreement are
continued on the Court's own motion to February 19, 2003. However, the
Court finds that there is no reason to further delay ruling on
defendant's motion to set aside entry of default. The Court finds that
defendant has shown grounds under CCP section 473, and the default
entered on July 31, 2002, is hereby vacated and set aside.
Defendant shall file and serve his answer and cross-complaint no
later than February 18, 2003. The proposed answer and cross-complaint
will not be separately filed by the Clerk.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
Department 54
February 5, 2003
Page 3
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ITEM 5 02AS01882 CURT MCMICHAEL, ET AL. VS. JERRY E. NORD, ET AL.
Nature of Proceeding: PET TO ENF COMPR AND STLMT
Filed By: THOMPSON, J. F.
See ruling in item no. 4.
***
ITEM 6 02AS03180 GAVIN SLABBERT VS. CALIFORNIA FEDERAL BANK
Nature of Proceeding: Motion To Compel
Filed By: MEW, ALICIA D.
Defendant's motion to compel plaintiff to respond to form
interrogatories (set one) is unopposed and is granted. Plaintiff shall
serve verified responses, without objection, no later than February 18,
2003.
Sanctions are denied as the motion is unopposed. CCP section 2023(b)
authorizes monetary sanctions to the extent such sanctions are
authorized by the particular method of discovery. CCP section 2030(k)
authorizes monetary sanctions only when the motion is unsuccessfully
made or opposed.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
***
ITEM 7 02AS05458 TERCAR, INC., ET AL VS. STATE OF CALIFORNIA, ET AL
Nature of Proceeding: Petition To Compel Arbitration
Filed By: ALEXANDER, J. SCOTT
Defendant and Petitioner The McDonald Glenn Company's petition to
compel arbitration is denied. As moving defendant has been dismissed
from this action, it no longer has standing. This ruling is without
prejudice to a motion for stay by the bonding company, defendant
Fidelity and Deposit Company of Maryland.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
Department 54
February 5, 2003
Page 4
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ITEM 8 02AS06716 MICHAEL REGAN ET AL VS SHAUN ALSTON ET AL
Nature of Proceeding: Writ of Possession Hearing
Filed By: BRAND, STEPHEN S.
The application for writ of possession is unopposed and is granted.
As defendant has no interest in the property, plaintiff is not required
to file an undertaking. Pursuant to CCP section 515.020, defendant may
file an undertaking in the amount of $10,000 per collage to prevent
plaintiff from taking possession or to regain possession of the
property.
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ITEM 9 02CS01960 SUTTER HEALTH VS. HEALTH NET OF CALIFORNIA, INC., ET AL
Nature of Proceeding: Petition To Confirm Arb Award
Filed By: GOFF, STEPHEN L.
The petition to confirm arbitration award is granted as follows.
The Court finds that section 3.3 of the Term Sheet is an agreement to
arbitrate disputes over material changes. The procedure contemplates
referral of the dispute to an independent actuary to determine the
amount of changed costs the Plan will be financially liable for or
credited for. Section E.20.8 of the Systemwide Amendment confirms the
provisions of section 3.3 and adds that the Actuary is to render a
decision within 30 days and any amounts due are to be paid within 10
days thereafter.
The parties referred their dispute over material changes to Milliman
USA, an independent actuary, by letter dated April 25, 2002. The letter
of engagement, however, requested only a determination of "when the
cumulative material change threshold of $.60 was met for each of the
commercial and Medicare products," and did not request determination of
the amount due. Milliman USA rendered a decision by letter dated August
23, 2002, consistent with the request, determining when the threshold
was met for each category, and providing costs per member per month
(PMPM). The Court finds that the Milliman decision is binding and can
be entered as a judgment, although it does not resolve the dispute
entirely. There remains the issue of the amount due based on the
determination of when the cumulative material change threshold was
passed. This issue is not properly before the Court, and will have to
be resolved in another manner.
Petitioner is directed to prepare an amended formal order and
judgment consistent with this ruling for the Court's signature.
Department 54
February 5, 2003
Page 5
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ITEM 10 96AS02568 STEVEN PAUL ADAMS VS. GRANT JOINT UNION HIGH SCHOOL, ET AL
Nature of Proceeding: MOTION TO TAX COSTS
Filed By: ANWYL, JAMES T.
Defendants' motion to tax costs is denied. The costs claimed for
the reporter's transcript, clerk's transcript and appellate briefs are
allowable under CRC Rule 26(c)(1) and (2).
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
***
ITEM 11 99AS06400 FSC/PAVILIONS ASSOC, ET AL VS. ARGENTA PM, ET AL
Nature of Proceeding: MT FOR ORD OF REL FRM WAIVR OF OBJ TO REQ FOR PROD OF DOC
Filed By: WHITE, STEVEN M.
On December 11, 2002, the Court ruled that the responses to the
request for production of documents must be served without objection,
and deemed the objections in the privilege log to be improper and waived
by plaintiff's failure to serve timely responses. The present motion
for relief from waiver is, in effect, a motion for reconsideration of
that ruling, and is denied because plaintiff has not met the
requirements of CCP section 1008.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
***
ITEM 12 02AM02432 PATELCO CREDIT UNION VS. DEBRA HOSKINS
Nature of Proceeding: CLAIM OF EXEMPTION
Filed By: CAUDILL, THOMAS
Dropped.
***
Department 54
February 5, 2003
Page 6
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ITEM 13 02AM03096 VALERIY MOSEYCHUK, ET AL VS. ALICIA BANNING
Nature of Proceeding: MOTION FOR SANCTIONS FOR DISOB TO PRIOR COURT ORDER
Filed By: TRIMBLE, SUZANNE M.
This matter is dropped from calendar. Defendant's prior motion for
terminating and monetary sanctions was granted on January 27, 2003, and
the complaint was dismissed. The Court notes that defendant filed an
"Amended Notice of Motion" with a new hearing date of February 5, 2003,
but did not drop the prior hearing or request court approval for a
continuance of the prior hearing. The matter was therefore heard and
decided, and the Court no longer has jurisdiction to rule on the present
motion.
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ITEM 14 02AM04812 UNION ADJUSTMENT CO.,INC. VS. MATT J. STEPHENS, ET AL
Nature of Proceeding: Default Hearing
Filed By: BREGMAN, H.M.
Appearance required. The Court has not received the evidence as
requested in the ruling of January 30, 2003.
***
ITEM 15 02AM09986 MITSUBISHI MTRS CR OF AMER INC VS. TRACY R DE MARS PARKER
Nature of Proceeding: Writ of Possession Hearing
Filed By: VANLOCHEM, MICHAEL D.
The application for writ of possession is unopposed and is granted.
No undertaking is required, as defendant has no interest in the
property. Defendant may file an undertaking in the amount of $18,886 to
prevent plaintiff from taking possession or to regain possession.
***
ITEM 16 02AM10382 KEY BANK NATIONAL VS. JOSEPH R. GOODE
Nature of Proceeding: Writ of Possession Hearing
Filed By: WINN, BRIAN N.
The application for writ of possession is unopposed and is granted.
Department 54
February 5, 2003
Page 7
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