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 11, 2003, 09:00
ITEM 1 01AS06234 MARIA T. CARPIO, ET AL VS. GRANLIBAKKEN AT LAKE TAHOE, ET AL
Nature of Proceeding: Motion To Compel
Filed By: OWEN , KATE
Defendant's motion to compel plaintiff to complete psychiatric IME
is granted. Plaintiff's declaration states that she discussed her
emotional state before and after the accident, but does not deny Dr.
Tucker's statement that she refused to answer specific questions
described in paragraph 6 of his declaration. The questions are relevant
to the subject matter of the litigation and should be answered in
person.
Plaintiff shall appear for the completion of her psychiatric IME on
a date and time that is mutually convenient for the parties.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
***
ITEM 2 01AS06350 SHANTAE TAYLOR VS. ANDRYA MORSE, ET AL
Nature of Proceeding: MOTION TO IMPOSE A TERMINATING SANCTION
Filed By: SANDERS, DAVID M.
Defendants' motion for terminating sanctions is unopposed and is
granted. Plaintiff did not oppose the prior motion to compel discovery
responses, did not comply with the Court's order of December 2, 2002,
and does not oppose this motion. Further, plaintiff's counsel recently
withdrew from representation on the ground that his client failed to
remain in communication with him about her case. Under these
circumstances, the Court finds that plaintiff has abandoned her case.
The outstanding discovery is essential to prepare a defense; thus,
plaintiff's failure to respond is prejudicial. A terminating sanction
would not result in a windfall, as responses favorable to defendants
would entitle defendants to judgment in their favor. See Puritan Ins.
Co. v. Superior Court (1985) 171 Cal.App.3d 877, 884.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required. Defendants shall submit
a judgment of dismissal for the Court's signature.
Department 54
February 11, 2003
Page 2
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ITEM 3 02AS00476 MARK MCBRIDE VS. JASON ENYEART
Nature of Proceeding: Summary Judgment
Filed By: HAMILTON, REBECCA
Continued to 03/03/2003
***
ITEM 4 02AS04058 ANGELO G. TSAKOPOULOS, ET AL VS. SYCAMORE VENTURES LLC, ETAL
Nature of Proceeding: OSC Re: Contempt
Filed By: SMITH, DANIEL W.
Appearance Required.
***
ITEM 5 02AS04117 DAVID BROOKSHIRE VS. RAYMOND RANCIATO, ET AL
Nature of Proceeding: Motion To Compel
Filed By: BEEDE, STEPHEN J.
Plaintiff's motion to compel defendant Raymond Ranciato to respond
to form interrogatories (set one), and request for production of
documents (set one) is unopposed and is granted. Defendant Ranciato
shall serve verified responses, without objection, no later than
February 21, 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.
***
ITEM 6 02AS04610 CHUN MEI DODGE VS. WASHINGTON MUTUAL BANK, ET AL.
Nature of Proceeding: Demurrer
Filed By: CHEIT, DAVID A.
Case transferred to Department 53
Department 54
February 11, 2003
Page 3
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ITEM 7 02AS04610 CHUN-MEI DODGE, VS. WASHINGTON MUTUAL BANK, ET AL.
Nature of Proceeding: MT FOR STY OF ACT PDG COMP OF FD AC
Filed By: CHEIT, DAVID A.
Case transferred to Department 53
***
ITEM 8 02AS04688 GREGORY FRYE VS. ASPEN PARK APARTMENTS, ET AL
Nature of Proceeding: MT TO COMPEL RESP TO REQ TO PRD DOC
Filed By: BLACKWELL, PATRICIA A.
Dropped.
***
ITEM 9 02AS04688 GREGORY FRYE VS. ASPEN PARK APARTMENTS, ET AL.
Nature of Proceeding: MT FOR DMD ADM AND AWD SACTNS
Filed By: BLACKWELL, PATRICIA A.
Dropped.
***
ITEM 10 02AS04688 GREGORY FRYE, VS. ASPEN PARK APARTMENTS, ET AL.
Nature of Proceeding: MT FOR ORD COMP ANS TO FM INTR
Filed By: BLACKWELL, PATRICIA A.
Dropped.
Department 54
February 11, 2003
Page 4
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ITEM 11 02AS04688 GREGORY FRYE, VS. ASPEN PARK APARTMENTS, ET AL.
Nature of Proceeding: MT TO COMP ANS TO SPEC INTER
Filed By: BLACKWELL, PATRICIA A.
Dropped.
***
ITEM 12 02AS04912 SONOMA AG ART, LLC VS. STATE OF CALIFORNIA, ET AL
Nature of Proceeding: Demurrer
Filed By: PHILLIPS, JEFFREY M.
Continued to 02/20/2003
***
ITEM 13 02AS05440 PEOPLE OF THE STATE OF CA VS. EUROPEAN HEALTH CONCEPT, ET AL
Nature of Proceeding: Demurrer
Filed By: BOTWIN, MICHAEL R.
The People's demurrer to the sixth, eighth, ninth, sixteenth and
seventeeth affirmative defenses contained in Buttrick's answer is
sustained without leave to amend pursuant to defendant Buttrick's
concession.
The demurrer to the eleventh, eighthteenth, nineteenth and twentieth
affirmative defenses is sustained without leave to amend for failure to
state facts sufficient to constitute affirmative defenses. The alleged
affirmative defenses do not consist of new matter.
This minute order is effective immediately. No formal order is needed,
C.R.C. rule 391, nor is further notice of this ruling required.
Department 54
February 11, 2003
Page 5
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ITEM 14 02AS05440 PEOPLE OF THE STATE OF CA VS. EUROPEAN HEALTH CONCEPTS,INC.
Nature of Proceeding: MOTION TO STRIKE
Filed By: BOTWIN, MICHAEL R.
The People's motion to strike the portion of Mr. Buttrick's Answer
seeking attorney's fees, found in paragraph 4 of the prayer, and to
strike the phrase "Plaintiff's own actions or breaches, or" set forth in
the Tenth Affirmative Defense on page 6, line 23, is granted. Mr.
Buttrick has filed a statement of non-opposition. The motion to strike
is granted without leave to amend.
This minute order is effective immediately. No formal order is needed,
C.R.C. rule 391, nor is further notice of this ruling required.
***
ITEM 15 02AS06190 ELIZABETH A. STINSON VS. LORINA GERODIAS
Nature of Proceeding: Motion To Strike
Filed By: JONES, MICHAEL G.
The motion to strike punitive damages allegations is granted with
leave to amend. As presently pleaded, the complaint does not allege
facts showing that defendant's fleeing the scene had a detrimental
affect on plaintiff's condition. The complaint does not distinguish
between the damages resulting from the accident and any separate damage
resulting from defendant's subsequent conduct.
An amended complaint may be filed and served no later than February
21, 2003.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
***
ITEM 16 02AS06904 PAUL CRESS, ET AL VS. SPRINGER INVESTMENT MANAGEMENT, ET AL
Nature of Proceeding: PET TO COMPEL ARBITRATION/MT TO STY
Filed By: SANDMANN, PETER B.
The petition to compel arbitration and stay action is granted.
Department 54
February 11, 2003
Page 6
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ITEM 17 02CS01432 THE PEOPLE OF THE STATE OF CA VS.$1404.00 U.S. CURRENCY(TUBB
Nature of Proceeding: MOT FOR ORD THAT REQUEST FOR ADM BE DMD ADM/MONT SANCTIONS
Filed By: LEONARD, STEPHANIE
Petitioner's motion for order that requests for admissions be deemed
admitted is unopposed and is granted. The truth of the matters asserted
in the request for admissions served on real party in interest, Chad
Tibbs, on November 8, 2002, is hereby deemed admitted unless responses
substantially complying with CCP section 2033(f)(1) are served prior to
hearing. CCP section 2033(k).
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
***
ITEM 18 02CS01432 PEOPLE OF THE STATE OF CA VS. $1,404.00 IN U.S. CURRENCY,
Nature of Proceeding: SUMMARY JUDGMENT
Filed By: LEONARD, STEPHANIE
Petitioner's motion for summary judgment is unopposed and is
granted. Petitioner's evidence (the deemed admissions) is sufficient to
meet petitioner's initial burden, shifting the burden to real party in
interest, Chad Tibbs, to produce evidence raising a triable issue of
material fact. Having filed no opposition to this motion, real party in
interest has not met his burden.
Petitioner shall submit a formal order complying with CCP section
437c(g) and a judgment for the Court's signature.
***
ITEM 19 03CS00048 JOHN W. LEE INC, ET AL VS. WILLIAM A STOERMER AND ASSOC ETAL
Nature of Proceeding: PET TO CORREC AWD AND CONF CORR AWD
Filed By: RADOSLOVICH, FRANK M.
The petition to correct arbitration award and confirm corrected
award is granted. Respondents' contention that the award should be
vacated is not meritorious.
The appeals board did not exceed its powers by ordering a remedy not
authorized by the contract. The test is whether the remedy awarded is
rationally drawn from the arbitrator's interpretation of the contract.
Advanced Micro Devices, Inc. v. Intel Corp. (1994) 9 Cal.4th 362, 377.
The contract is susceptible to an interpretation that the penalties were
authorized as the stated exceptions did not apply.
The award does not violate respondent's statutory rights under CCP
sections 1284 and 1286.4 as the appellate arbitration panel is expressly
authorized by the contract.
The award against William and Wendy Stoermer individually did not
impose a remedy that is not authorized by law, as William and Wendy
Stoermer were parties to the Franchise Agreement as Principal Owners.
The failure to include in the claim a statement regarding meet and
confer attempts did not deprive the arbitrators of subject matter
jurisdiction, and in any event was waived by respondents' participation
in both levels of arbitration.
The contract is not unconscionable by authorizing punitive damages
for breach of contract. The 35% penalty is imposed for violating the
intent of the franchise agreement, i.e. when one franchisee refuses to
honor another franchisee's exclusive territory and the covenant not to
compete with another franchisee. Respondent's contention that there was
unequal bargaining power between it as a franchisee and the franchisor
is unpersuasive in light of the fact that this is not a dispute between
the franchisor and a franchisee, but rather involves two similarly
situated franchisees.
The Court finds that the record is sufficiently definite to allow it
to correct the award by applying the penalty percentages to the amount
of the Whispering Pines contract. The petition is granted as prayed.
The Court will sign the formal order submitted with the moving papers.
Department 54
February 11, 2003
Page 7
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ITEM 20 01AM00458 RAY C. TUBBS VS. CITY OF SACTO
Nature of Proceeding: Motion To Compel
Filed By: JOHNS, STEVEN T.
Defendant City of Sacramento's motion to compel deposition of
plaintiff Tubbs is granted. Plaintiff shall appear for deposition at a
time and place to be renoticed by defendant.
It appears to the Court that although the motion was served on
plaintiff's last known address, clarification of the current address is
desirable. Therefore, defendant City is directed to confirm plaintiff's
current address. If that address cannot be confirmed, all further
documents shall be served on plaintiff at his last known address and on
the Clerk of the Court in the manner required by CRC Rule 202.5. CCP
section 1011(b).
Defendant is directed to serve a copy of the minute order as
directed above.
***
ITEM 21 01AM08676 ANTHONY MURRAY VS. MICHAEL SASTRE
Nature of Proceeding: Motion To Withdraw Atty of Rec
Filed By: MCCLELLAN, BRIAN R.
Although the Court does not find defendant's contentions of
reasonableness persuasive, in the absence of opposition the motion to
set aside judgment will be granted.
***
ITEM 22 02AM09808 SAM JAVIDAN VS. HOWARD NEVENS, III
Nature of Proceeding: Default Hearing
Filed By: ASAKAWA, BILL C.
Continued to 03/04/2003
Department 54
February 11, 2003
Page 8
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ITEM 23 99AM07018 TERRY CIANCIO, ET AL VS. TROY STENEN, ET AL
Nature of Proceeding: MOTION TO SET ASIDE JUDGMENT ON ARBITRATION AWARD
Filed By: WALTER, JAMES W. JR.
Case transferred to Department 53
***
ITEM 24 99AM10084 BRUCE BRUSTEN VS. LACEY MANGINI
Nature of Proceeding: MOTION FOR TERMINATING SANCTIONS
Filed By: SALBERG, JEFFREY R.
Defendant's motion for 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).
Plaintiff's opposition states that he previously served responses to
the outstanding discovery, but his receipt and a portion of his files
have been stolen. Plaintiff further states that he is responding again.
Under these circumstances, the Court cannot find that plaintiff has
willfully failed to comply with his discovery obligations.
As defendant did not propose any lesser sanctions, the Court will
not impose evidence or issue sanctions at this time.
Monetary sanctions are denied as the Court finds other circumstances
exist which would make the imposition of monetary sanctions unjust.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
***
