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
V. Carroll, Bailiff
February 19, 2003, 09:00
ITEM 1 00AS05378 JAMES R. HARRIS, ET AL VS. PRIMARY FINANCIAL GROUP, ET AL
Nature of Proceeding: Default Hearing
Filed By: MALYSI AK, SPENCER T.
Appearance Required.
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ITEM 2 00AS07060 KAREN MOORE VS. ANDREW W. FOLEY, ET AL
Nature of Proceeding: MOTION FOR ORDER AWARDING ATTORNEYS' FEES
Filed By: HEALY, DANIEL J.
Plaintiff's motion for order awarding attorney fees is unopposed and
is granted on condition that proof of timely service of the moving
papers is filed in Dept. 54 prior to hearing.
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ITEM 3 01AS03518 LISA O'GORMAN VS. PROCOM WIRELESS, INC., ET AL
Nature of Proceeding: MOTION COMPEL TRANSFER STOCK
Filed By: HOWARD J. STAGG IV
Defendants' motion to compel Lisa O'Gorman to transfer her shares of
stock in Procom Wireless Inc. to Russell Mix and Theresa Mix is
unopposed and is granted. Defendants shall submit a formal order for
the Court's signature.
Department 54
February 19, 2003
Page 2
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ITEM 4 02AS01882 CURT MCMICHAEL, ET AL VS. JERRY E. NORD, ET AL
Nature of Proceeding: Motion To Compel
Filed By: MIKACICH, JAMES L.
Continued to 03/07/2003
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ITEM 5 02AS03794 RICK SHERWOOD VS. CHRISTOPHER PAPAS
Nature of Proceeding: DEFAULT HEARING
Filed By: O'CONNOR, TIMOTHY J.
The Court notes that the prayer seeks contract damages in an amount
according to proof, and general damages "in excess of $50,000." The
statement of damages served by plaintiff is authorized only in personal
injury and wrongful death cases. It is not authorized in legal
malpractice cases. Therefore, any judgment cannot exceed the amount
prayed in the complaint, and will be limited to $50,000. If plaintiff
wishes to seek a greater recovery, he must file and serve an amended
complaint, which will reopen the default.
Appearance Required.
***
ITEM 6 02AS03930 MICHAEL DARRELL MURPHEY VS. SHANNON PANORA
Nature of Proceeding: Motion To Compel
Filed By: NIEMANN, ANNA J.
Defendant's motion to deem matters admitted or alternatively compel
responses to interrogatory and document production discovery is
unopposed and is granted. The truth of the matters asserted in the
request for admissions is hereby deemed admitted unless responses
substantially complying with CCP section 2033(f)(1) are served prior to
hearing. CCP section 2033(k).
Defendant's alternative motion is also granted. Plaintiff shall
serve verified responses, without objection, to form interrogatory 17.1
(set two) and request for production of documents (set two) no later
than March 3, 2003.
Defendant is awarded mandatory sanctions pursuant to CCP section
2033(k) in the amount of $135.30 against plaintiff.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
Department 54
February 19, 2003
Page 3
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ITEM 7 02AS04104 WILLIAM O. WALLACE VS. JAMES H. WALLACE
Nature of Proceeding: MOTION TO DISCOVER
Filed By: WALLACE, WILLIAM O.
Plaintiff's "motion to discover" is denied as it is not an authorized
discovery motion under the Civil Discovery Act of 1986.
Plaintiff has previously filed unauthorized "motions to discover" in
which he attempts to conduct discovery through motion rather than
through an authorized method of discovery. Such motions qualify
plaintiff as a vexatious litigant under CCP section 391(b)(3). Any
future filings of the same or similar "motion to discover" will be
considered by the Court as a possible civil contempt of the Court's
orders.
***
ITEM 8 02AS04640 LEWIS, MILLER & COMPANY, INC. VS. JEFFERY L. JACOBS, ET AL
Nature of Proceeding: Motion To Strike
Filed By: JACOBS, JEFFREY L.
Defendant's motion to strike amended complaint is denied. See
ruling in item no. 9.
***
ITEM 9 02AS04640 LEWIS, MILLER & COMPANY, INC. VS. JEFFERY L. JACOBS, ET AL
Nature of Proceeding: MT TO RESCHDLE DATES FOR FILING AND RESP TO AMENDED COMPLNT
Filed By: STOLMAN, MARC D.
Plaintiff's application to reschedule dates for filing and
responding to amended complaint is construed as a motion for relief
under CCP section 473 and is granted. A party does not have an absolute
right to file a pleading beyond the time permitted by statute or court
order, nor does the other party have an absolute right to have the
pleading stricken. Buck v. Morrossis (1952) 114 Cal.App.2nd 461,
464-465. The Court finds that plaintiff's evidence establishes
excusable neglect and warrants the relief requested. No prejudice to
defendant will result.
The amended complaint filed on January 8, 2003, is hereby deemed
timely filed. Defendant shall file and serve his response no later than
March 3, 2003.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
Department 54
February 19, 2003
Page 4
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ITEM 10 02AS04640 LEWIS, MILLER & COMPANY, INC. VS. JEFFREY L. JACOBS, ETAL.
Nature of Proceeding: MOTION TO DISMISS ACTION
Filed By: JACOBS, JEFFREY L.
Defendant's motion to dismiss is denied. See ruling in item no. 9.
***
ITEM 11 02AS05764 EUGENIO LEPE VS. RAFAEL FERNANDEZ, ETAL
Nature of Proceeding: Motion To Compel
Filed By: BARRETT, DAVID S.
Defendants' motion to compel further responses to form
interrogatories (set one), special interrogatories (set one) and request
for production of documents (set one) is unopposed and is granted. The
lack of opposition is deemed a concession of the merits of the motion.
Plaintiff shall serve further responses, verified and without objection,
no later than March 3, 2003.
Insofar as the motion seeks production of documents, it is denied as
premature, as CCP section 2031(n) authorizes a motion to compel
compliance after a response is filed and inspection in compliance with
the response is not permitted.
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 sections 2030(k)
and 2031(l) authorize 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 12 02AS06130 JEFFREY MANNING VS. AMERICAN BLDG SUPPLY, INC.
Nature of Proceeding: Motion To Compel
Filed By: SHY, JENNIFER A.
Defendant's motion to compel arbitration and stay action pending
arbitration is granted. The 1996 arbitration agreement, which plaintiff
admits he signed and which the evidence shows he had ample opportunity
to read and understand, is binding. The arbitration provision is not so
one-sided as to be unconscionable. The 2000 handbook did not change
anything. If it is viewed as a contract, it reiterates the agreement to
arbitrate. If it is not veiwed as a contract, it does not replace the
1996 agreement.
The parties are ordered to arbitration pursuant to the contract.
This action is hereby stayed pending conclusion of arbitration or
further order of this court.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
Department 54
February 19, 2003
Page 5
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ITEM 13 02AS06764 RICHARD J. BREGANTE VS. A.C.M. INVESTOR SERVICES, ET AL
Nature of Proceeding: MOTION TO STRIKE (FIDELITY)
Filed By: MOORHEAD, KATHLEEN J.
Defendant Fidelity's motion to strike prayer for punitive damages is
granted without leave to amend. The only cause of action alleged against
this defendant is negligence, and plaintiff has not shown that he can
allege facts showing malice, oppression or fraud.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
***
ITEM 14 02AS06764 RICHARD J. BREGANTE, VS. A.C.M. INVESTOR SERVICES, INC.ETAL.
Nature of Proceeding: MOTION TO STRIKE (CHICAGO TITLE)
Filed By: MOORHEAD, KATHLEEN J.
Defendant Chicago Title's motion to strike prayer for punitive
damages is granted without leave to amend. The complaint fails to
allege sufficient facts showing fraud, oppression or malice.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
***
ITEM 15 02CS01984 IN RE: MICHELLE EUNICE VITHOULKAS
Nature of Proceeding: Petition For Change Of Name
Filed By: VITHOULKAS, KATIE M.
The petition is unopposed and is granted.
***
ITEM 16 03CS00006 IN RE: MARISSA CAROL
Nature of Proceeding: Petition For Change Of Name
Filed By: GLOWACKI, MARISSA CAROL
The petition is unopposed and is granted.
Department 54
February 19, 2003
Page 6
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ITEM 17 03CS00042 HASIE MEGRAVE, ET AL VS. SACRAMENTO COUNTY, ET AL
Nature of Proceeding: MOTION TO QUIET TITLE,SDT ALL DOC
Filed By: MEGROVE, HASSIE
Plaintiff's motions to quiet title and for court appointed attorney
are dropped from calendar. No proof of service showing service of the
summons and complaint on the named defendants is in the file. It does
not appear that any defendant has been served. The Court has no
jurisdiction to grant relief against any defendant until that defendant
has been properly served and has appeared in the action, or a default
has been taken. No attorney will be appointed as there is no right to
counsel in a civil action.
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ITEM 18 02AM02300 CHARLES KINNEY VS. SCHOOLS FINANCIAL CREDIT UNION, ET AL
Nature of Proceeding: MOTION FOR LEAVE TO FILE CROSS-COMPLAINT
Filed By: BISHOP, MICHAEL A.
Defendant's motion for leave to file compulsory cross-complaint is
granted. The Court's discretion to deny the relief sought is limited,
and denial is not warranted on this record. See Silver Organizations
Ltd. v. Frank (1990) 217 Cal.App.3d 94, 98-99; Sidney v. Superior Court
(1988) 198 Cal.App.3d 710, 718.
The cross-complaint may be filed no later than March 3, 2003. The
proposed cross-complaint attached to the moving papers will not be filed
separately by the Clerk. The Court expresses no opinion as to whether
the cross-complaint states a cause of action or any grounds for relief.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
***
ITEM 19 02AM04726 UNION ADJUSTMENT CO., INC. VS. DEIADRA E. EDWARDS
Nature of Proceeding: CLAIM OF EXEMPTION
Filed By: BREGMAN, H. M.
The wage garnishment is set at $100.00 per month. Any money held in
excess of that amount shall be returned to the debtor. If there is an
appearance at the hearing, the burden of proof is on the debtor.
Department 54
February 19, 2003
Page 7
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ITEM 20 02AM06042 MONITA CLOTY VS. JOSEPH A. FERREIRA
Nature of Proceeding: Motion To Compel
Filed By: TWEEDY, PATRICIA
Defendant's motion to compel responses to request for production of
documents (set one) is unopposed and is granted. Plaintiff shall serve
verified responses, without objection, no later than March 3, 2002.
Insofar as the motion seeks production of documents, it is denied as
premature, as CCP section 2031(n) authorizes a motion to compel
compliance after a response is filed and inspection in compliance with
the response is not permitted.
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 2031(l)
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.
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