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
None, Bailiff
February 18, 2003, 09:00
ITEM 1 00AS05730 CARLOS M. ALCALA VS. JULIE PADILLA, ET AL
Nature of Proceeding: Motion To Compel
Filed By: GARCIA, G ASPAR II
The motion to compel Rose Moreno to serve further responses to Form
Interrogatories, set one, ##15.1, 17.1, 50.1-50.6 is granted. Further
responses are to be served no later than Friday, February 28, 2003.
The motion to compel further responses to Request for Production of
Documents, set one, is denied as to ##6, 9. Merely disbelieving Ms.
Moreno's response is not sufficient ground for seeking a further
response. As to ##7, 8 and 9, the motion is granted. Ms. Moreno must
respond by stating she will or will not produce the documents, or by
objecting. She cannot state she will provide any documents that are
discoverable. That is an improper response. Ms. Moreno must serve
further responses to ##7, 8 and 9 no later than Friday, February 28,
2003.
The request for a monetary sanction is denied as the motion is
unopposed.
This minute order is effective immediately. No formal order is needed,
C.R.C. rule 391, nor is further notice of this ruling required.
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ITEM 2 00AS05730 CARLOS M. ALCALA, VS. JULIE PADILLA, ET AL.
Nature of Proceeding: MT FOR ORD REQ FOR ADM DMD ADM
Filed By: GARCIA, GASPAR II
The Requests for Admissions, sets one, two and three, served on
defendant Rose Moreno, are deemed admitted unless, prior to the hearing,
defendant serves proposed responses that comply with C.C.P.
2033(f)(1). C.C.P. 2033(k).
Unverified responses are equivalent to no response at all.
A mandatory monetary sanction of $317.80 is awarded to plaintiff from
defendant Rose Moreno.
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 18, 2003
Page 2
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ITEM 3 00AS05884 NANCY LANGSJOEN, ET AL VS. DEMMON PARTNERS, ET AL
Nature of Proceeding: Summary Judgment
Filed By: BERTA, JOHANNA M.
Prudential Insurance Company's motion for summary judgment is granted.
As of March, 1993, Prudential owned Harbor Oaks. Prudential sold its
entire interest in Harbor Oaks to the Demmon Family Trust on September
30, 1999. Prudential had neither ownership, possession nor control over
Harbor Oaks at the time plaintiffs became aware of the presense of mold
in their apartment in April, 2000. Between October, 1996 and September,
1999, plaintiffs made three complaints regarding mold. Her complaints
were responded to and no water leaks or indication of mold was found.
The evidence is sufficient to meet Prudential's burden of showing they
did not breach any duties with respect to repair and maintenance of the
premises from October, 1996 to September, 1999 and its evidence is
sufficient to show it is entitled to judgment as to the other causes of
action plead.
Plaintiff opposes the motion by claiming defendant failed to dry out the
water saturated building materials in response to plaintiffs' complaint
of water leak in November, 1998. The evidence does not establish that
there was "water saturated building materials" in November, 1998. The
work order states "the wall outside in the front porch area on the right
side of the front door has a water leak it's actually a drip that goes
into the wall, we sealed it twice but with water inside the wall. She
is afraid that there is black mold in the wall getting into the unit
making both her & the daughter sick. Please remove board & assure there
is no mold!" There is further writing on the work order which the Court
cannot make out. The work order merely states what plaintiffs believed
was the problem. Plaintiffs have failed to set forth evidence that
there was actually a leak in the wall, while defendants produced
evidence that a leak was never found. Deposition of Ervin, pp. 288-289.
Mere speculation by plaintiffs is not sufficient to meet their burden in
opposing the motion for summary judgment. Finally, plaintiffs' argument
regarding alternative liability is not proper under these circumstances,
where plaintiff has not created a triable issue of material fact as to
Prudential's negligence. Summers v Tice (1948) 33 C.2d 80, Sindell v
Abbott Laboratories (1980) 26 C.3d 588.
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
February 18, 2003
Page 3
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ITEM 4 01AS02734 LIA RIOS, ET AL VS. LUIS CHAVES CAMARIO JR., ET AL
Nature of Proceeding: Motion To Compel
Filed By: EMANUELS, ERIC S.
Dropped.
***
ITEM 5 01AS05758 CHRISTINA LOPES VS. CALVIN MILLER
Nature of Proceeding: MOTION FOR ORDER ESTABLISHING ADMISSIONS/SANCTIONS
Filed By: LEE, DAVID G.
The motion to have admissions deemed admitted is denied as, prior to the
hearing, defendant served proposed responses which comply with C.C.P.
2033(f)(1). C.C.P. 2033(k).
A mandatory monetary sanction of $205.30 is awarded to plaintiff from
defendant.
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 6 01AS05758 CHRISTINA LOPES, VS. CALVIN MILLER,
Nature of Proceeding: MOTION TO COMPEL
Filed By: LEE, DAVID G.
It is the client's responsibility to maintain communication with his
counsel in order to respond to discovery and notices. Defendant has
been served twice with deposition notices and has failed to appear.
Plaintiff is entitled to take his deposition. Defendant is ordered to
appear at his deposition at on Wednesday, February 26, 2003, at a time
and location to be noticed by plaintiff. Plaintiff should serve the
notice no later than Wednesday, February 19, 2003.
A mandatory monetary sanction of $205.30 is awarded to plaintiff from
defendant.
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 18, 2003
Page 4
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ITEM 7 01AS06354 DAN GONZALEZ VS. SOUTHERN PACIFIC TRANSPORTATION CO, ET AL
Nature of Proceeding: Motion To Compel
Filed By: JOHNSON, MICHAEL L.
Defendant's motion is denied. The response complies with the code, and
a demand for production of documents does not serve as an interrogatory.
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 8 01AS07892 SHAWN WATKINS VS. LEON T. BEERS, ET AL
Nature of Proceeding: Motion To Compel
Filed By: CROWDIS, DAVID G.
Plaintiff's motion is granted. Ms. Anna Salvatierra is ordered to
appear for her deposition on February 24, 2003, at 10:00 a.m., at the
Law Offices of David G. Crowdis, 2001 21st Street, Suite 100,
Sacramento, Ca.
No sanctions are awarded pursuant to the parties agreement.
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 9 02AS00180 ALFONSO LOPEZ, ET AL VS. CALIFORNIA DEPARTMENT OF FAIR...
Nature of Proceeding: Motion To Compel
Filed By: TALLEY, JILL H.
A motion is made when filed and served. C.C.P. 1005. The Court rules
on the motion as of the date made. As of January 23, 2003, defendants
had not received responses to their special interrogatories. The Court
therefore orders plaintiff to serve verified responses, without
objections, to defendants' special interrogatories, set one, no later
than Friday, February 28, 2003.
The request for a monetary sanction is denied as the motion is not
opposed on the merits.
Plaintiff served a response after the motion was made. If the plaintiff
feels his response complies with the Court order, he need not re-serve
the responses. He takes the chance however that defendant may not agree
and move for sanctions, including terminating sanctions, for failure to
obey an order of the court.
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 18, 2003
Page 5
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ITEM 10 02AS04796 LARRY MENDOLLA, ETAL VS. WILLIAM A. SASSMAN, ETAL
Nature of Proceeding: Default Hearing
Filed By: CAPP, DAWN M.
The Court notes that defendant Guardian Life Insurance is still a party
to this case. The Court exercises its discretion to not enter a several
judgment at this time. C.C.P. 579. The default request is dropped
from the calendar without prejudice.
***
ITEM 11 02AS04818 DAVID DEWYKE, ET AL VS. CELLULAR MARKETING GROUP, INC.
Nature of Proceeding: Motion To Compel
Filed By: PENTIS, CARL J.
Defendant Cellular Marketing Group, Inc.'s motion is granted as to all
the Special Interrogatories, Request for Production and Requests for
Admissions. There is a dispute as to whether a cure period was
provided. The identify of plaintiff's employees is relevant. The
information sought is relevant and likely to lead to admissible
evidence. On balance, the Court finds defendant's need for the
information contained in the employee's personnel files outweighs their
rights to privacy. The information contained in those files shall be
subject to the usual protective order.
Plaintiff states a response was provided to Request for Admissions, #10,
however objections were part of the response and the objections are
overruled, therefore a further response is required. The Court notes
plaintiff did not either admit or deny the Request.
Plaintiff also states a Supplemental Response was served as to Form
Interrogatory #9.1. The supplemental response was served after the
motion was made, C.C.P. 1005.5, and defendant is entitled to a ruling
from the court as to the Form Interrogatory.
The further responses are to be served no later than Friday, February
28, 2003.
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 18, 2003
Page 6
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ITEM 12 02AS04818 DAVID DEWYKE, ET AL. VS. CELLULAR MARKETING GROUP, INC.
Nature of Proceeding: MOTION TO COMPEL
Filed By: RIEMER, MICHELE L.
Plaintiff's motion to compel a further response to its Request for
Production of Documents, set one, #1, is denied. The only issue in this
case is the license agreement between the parties and whether it was
breached. The issues of defendant's license agreements with others and
whether defendant did not treat same conduct as a breach by other
contracting parties while treating it as a breach by the plaintiff, are
not relevant.
Defendant states a Supplemental Response was served as to Request for
Production #18. The supplemental response was served after the
motion was made, C.C.P. 1005.5, and plaintiff is entitled to a ruling
from the court as to the Request for Production.
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 13 02AS05168 ROCCO TELLIER, AN INDIVIDUAL VS. ERIC ROSANDER, ET AL.
Nature of Proceeding: MT FOR ORD REG FRTHR INST TO R
Filed By: MCFARLAND, BEVERLY N.
This matter has been settled pursuant to stipulation signed 2/11/03.
The motions are therefore dropped from the calendar.
***
ITEM 14 02AS06428 WILLIENE D. DAVIS, ET AL VS. CA PUBLIC EMP RET SYSTEM ETAL
Nature of Proceeding: Demurrer
Filed By: HENDRICKSON, TRACY S.
The Court, after careful review of the pleadings and the arguments by
both sides, concludes that plaintiffs fail to state causes of action and
the demurrer must be sustained. The Court cannot see how plaintiffs can
plead other facts that would change the legal effect of what has been
plead and therefore sustains the demurrer 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.
Department 54
February 18, 2003
Page 7
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ITEM 15 02AS06998 MELANIE CORNELL VS. SUTTER UNSURANCE CO., ET AL
Nature of Proceeding: Demurrer
Filed By: MCGREEVY, RICHARD E.
Defendant demurs to the third cause of action, fraud, on the ground it
is not plead with specificity. Although the misrepresentations are
fully plead, plaintiff has not alleged who stated what and when.
Plaintiff states she can identify, by name, the persons who made the
mispresentations identified in the complaint and the date they were
made. The demurrer is therefore sustained to enable plaintiff to state
the names and dates that are currently missing from the complaint.
Plaintiff to file and serve a first amended complaint no later than
Friday, February 28, 2003.
Defendant to respond no later than Monday, March 10, 2003.
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 16 02CS01910 PEOPLE OF THE STATE OF CALIFORNIA VS. $497.00 (MOSLEY)
Nature of Proceeding: Motion To Strike
Filed By: LEONARD, STEPHANIE
The motion to strike is dropped from the calendar. The Court on January
16, 2003, already granted the People's motion to strike Mr. Moseley's
claim.
***
ITEM 17 98AS05700 CRAIG MCINTOSH, ET AL VS. H.C. ELLIOTT HOMES, INC.
Nature of Proceeding: MOTION TO ENFORCE SETTLEMENT
Filed By: HAYDU, EUGENE P.
The motion is granted. Plaintiffs to submit a judgment for the Court's
signature which "tracks" the settlement entered into by the parties.
The judgment is to be presented to department 54 no later than Tuesday,
February 18, 2003, at 9:00 a.m.
The request for attorney's fees is denied. No suit has been filed to
enforce the settlement, nor are there any other contractual terms or
case law which would support a request for attorney's fees.
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 18, 2003
Page 8
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ITEM 18 99AS06874 FRANCES LEE VS. GIFFORD HILL PIPE COMPANY, ET AL
Nature of Proceeding: Motion To Withdraw Atty of Rec
Filed By: FERRIS, NOEL M.
The motion is granted. The Court will sign the order lodged with the
motion. The order will become effective on the day counsel files a
proof of service, in department 54, showing the client was served with a
copy of the signed order of the court. Counsel is to also serve all
other parties who have appeared in this case with a copy of the signed
order of the court.
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 19 02AM03556 JAMES POND VS. ALLISON BLOOR
Nature of Proceeding: MOTION FOR SANCTIONS FOR DISOB TO PRIOR COURT ORDER
Filed By: JONES, MICHAEL G.
The motion to strike the complaint and dismiss the action with prejudice
is denied. Defendant's motion to compel plaintiff to respond to Form
Interrogatories and Request for Production of Documents was granted on
December 12, 2002. The motion did not attach the form interrogatories
or request for production of documents as an exhibit, nor does this
motion. Sanctions must fit the transgression, should help achieve the
objects of litigation and are not meant to be punitive. Terminating
sanctions may not be imposed if they would result in a windfall for the
moving party. Caryl Richards, Inc. v. Superior Court (1961) 188
Cal.App.2d 300, 303-304. Without the Form Interrogatories and Request
for Production of Documents as evidence, the Court cannot tell whether
lesser sanctions would be appropriate or indeed if sanctions at all are
warranted.
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 18, 2003
Page 9
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ITEM 20 02AM07400 VANG VUE VS. JOSE CORRE, ET AL
Nature of Proceeding: Motion To Strike
Filed By: WOOD, MARY E.
The motion to strike is unopposed and is granted. The allegations of
the complaint do not state facts justifying the request for punitive
damages nor does it state facts justifying a request for attorney's
fees. The request for punitive damages and attorney's fees in the
prayer is stricken 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.
***
