NOTICE:
To request limited oral argument on any matter on this
calendar, you must call the Court at (916) 874-7858
(Department 53) by 4:00 p.m. the day before this hearing
and advise opposing counsel. Local rule 31(h). If no
call
is made the tentative ruling becomes the order of
the
court.
TENTATIVE RULINGS
Department 53
Superior Court of California
800 Ninth Street, 3rd Floor
LOREN E. MCMASTER, Judge
T. WEST, Clerk
L. STEWART, Bailiff
February 24, 2003, 02:00
ITEM 1 00AS01377 MICHAEL CORNEL GOGA VS. CHEVYS, INC.
Nature of Proceeding: MOT AUGMENT EXPERT WITNESSES
Filed By: BLACK, TRAVIS G.
This motion was on calendar and granted as an unopposed motion on
February 6, 2003. After the motion was filed but before it was heard,
plaintiff made an ex parte application to shorten time but did not
inform the court that an identical motion had been set for hearing on
February 6. The court vacates the order of February 6, 2003. The motion
had not been timely served and the court did not have jurisdiction to
rule on it.
The motion to augment is granted.
The expert witness disclosure occurred on February 15, 2002.
Plaintiff disclosed one retained expert and several nonretained treating
physicians. He now seeks to augment his list by adding non retained
treating physicians. These experts were not included on the original
list because they had not seen plaintiff. Dr. Henry did not see
plaintiff until August 2002. Dr. Bellomo saw plaintiff on January 9,
2003. Dr. Montesano has not seen plaintiff and has simply reviewed his
records. He and Dr. Bellomo are in the same office. Dr. Parkinson has
not seen plaintiff.
First, defendant points out that plaintiff's remedy was to seek a
protective order to allow the expert exchange at a later date if
plaintiff's condition was unstable.
Second defendant contends that none of these experts is truly a
treating physician or percipient witness as defined by the court in
Schreiber v Estate of Kiser (1999) 22 Cal.4th 31, 35-36. Plaintitff
continues to receive treatment from his physicians at Kaiser where
plaintiff is a member. Defendant argues this attempt to augment appears
to be a result of plaintiff's "shopping" around for doctors who will
give the opinion he desires and that this is an inappropriate use of CCP
2034(k). Finally defendant states it is prejudiced because it will
incur the additional cost of further depositions, its expert will need
to will again review the records, and will need a second IME.
Plaintiff maintains that his condition has been unstable and he
continues to seek treatment. He further argues that these are his
treating physicians and they should be allowed to testify about his
physical condition. He further argues that he had no way of knowing at
the time of disclosure that he would continue to require treatment from
these doctors. He could not forsee he would experience the medical
problems he has, or require the health care he has received, a year ago
when the exhange was made. Plaintiff vigorously maintains that the
experts he wishes to disclose are doctors he is seeing because he
requires treatment, and he is not seeing them only for the purposes of
litigation.
Plaintiff also argues that defendant has not shown that it relied
on the original disclosure because plaintiff has continually kept
defendant informed of the changes in his condition. He also states that
since the trial date is not until April 23 there is ample time to depose
these experts.
Whether defendant is entitled to require plaintiff to submit to a
second IME is not before the court at this time. If defendant deems a
second IME is necessary they should make the appropriate motion if
plaintiff does not stipulate.
This minute order is effective immediately. No formal order is
required, the tentative ruling being sufficient notice.
Department 53
February 24, 2003
Page 2
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***
ITEM 2 00AS02325 LINDA J. LOESCH-POWELL VS. DONALD WALDREP, ET AL
Nature of Proceeding: Summary Judgment
Filed By: KOSTER, CHRISTIAN
Dropped.
***
ITEM 3 00AS05605 MICHAEL COMER VS. WILLIAM GROZA, ET AL
Nature of Proceeding: Motion To Withdraw Atty of Rec
Filed By: GLOVIN, RICHARD M.
The motion of counsel for plaintiff to withdraw as attorney of
record is granted. The order will be effective when signed by the
court.
***
ITEM 4 01AS01089 FEDERICO CECENA VS. SUENARI KOYASAKO
Nature of Proceeding: Motion To Compel
Filed By: LITTLE, PATRICK R.
Defendant's motion to compel responses to discovery is unopposed
and granted. Compliance without objections shall be by March 4, 2003.
Sanctions are denied as the motion is not opposed.
This minute order is effective immediately. No formal order is
required, the tentative ruling being sufficient notice.
***
ITEM 5 01AS04301 LAVONNA JEANNE KENNEDY VS. TODD ANTHONY WAGNER, ET AL
Nature of Proceeding: Motion To Compel
Filed By: JOHNS, STEVEN T.
Dropped.
Department 53
February 24, 2003
Page 3
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ITEM 6 01AS04865 STACY BOYNTON VS. SAM GHAFFARI FURNITURE, INC., ET AL
Nature of Proceeding: SUMMARY JUDGMENT/JOINDER
Filed By: BROWN, KATHLEEN Q.
Defendants and cross-defendants Stanley Y. Fong and Elaine L. Fong's
Motion for Summary Judgment is denied. The Joinder of defendant Sam
Ghaffari Furniture, Inc. d.b.a. Sam's Furniture is also denied.
Plaintiff's complaint alleges personal injuries incurred when
plaintiff slipped and fell on a large crack in the asphalt at the
parking lot of defendant Sam's Furniture. Moving defendants were named
as Does 1 and 2 in the complaint for premises liability and negligence.
Moving parties were cross-complained against by Sam's Furniture as Roes
1 and 2 for indemnity and declaratory relief.
On May 21, 2002, this Court ordered that the Fongs' Request for
Admissions to Plaintiff (Set One) were deemed admitted, as no verified
responses had been served by plaintiff. The Fongs rely entirely upon
the deemed admissions as the evidentiary basis to support their motion
for summary judgment.
On January 21, 2003, having taken plaintiff's motion for relief from
order that certain matters be deemed admitted under submission, this
Court granted plaintiff's request for relief from the May 21, 2002 order
that the requests for admission were deemed admitted. The plaintiff's
responses to the requests for admission were to deny each and every
request for admission.
Thus, moving parties have failed to meet their initial burden of
proof on summary judgment, and the motion is denied for lack of evidence
in support.
The prevailing party plaintiff is directed to prepare an order for
the Court's signature pursuant to C.C.P. section 437c(g).
***
Department 53
February 24, 2003
Page 4
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ITEM 7 01AS06609 WESTWOOD GREYHAWK, LTD VS. US BANK NATIONAL ASSOC.
Nature of Proceeding: Summary Judgment
Filed By: HUNTER, S. CRAIG
Continued to 03/10/2003
***
ITEM 8 01AS06895 RAJ SINGH VS. STEPHEN LIPWORTH, ET AL
Nature of Proceeding: Motion To Compel
Filed By: DIXON, THOMAS
Dropped. All matters involving this plaintiff are stayed pending
hearing on the motion to have him declared a vexatious litigant.
***
ITEM 9 01AS07701 FELICIA DIXON VS. REGENTS OF THE UNIVERSITY OF CA., ET AL
Nature of Proceeding: MOTION FOR SANCTIONS
Filed By: FUJIMOTO, RANDI L.
Defendants' motion for terminating sanctions is unopposed and
granted. Plaintiff has not responded to discovery requests and has
willfully disobeyed two court orders directing her to do so.
Defendants shall submit a formal order and judgment of dismissal.
***
ITEM 10 01AS07831 DIAMOND RADIO, INC. VS. Z-SPANISH RADIO NETWORK, INC., ET AL
Nature of Proceeding: Motion TO File Cross Complaint
Filed By: AUGSBERGER, MARCIA L.
Diamond Radio's Motion for Leave to File Cross-Complaint, Amended
Answer and First Amended Complaint is denied, as set forth below.
On January 9, 2003, this Court granted summary judgment for
defendants Syndicated Communications Venture Partners III, L.P.,
Alliance Enterprise Corp., Connecticut-Greene Ventures, L.P.,
Opportunity Capital Partners II, L.P., Opportunity Capital Partners III,
L.P. and Opportunity Capital Corp.'s (collectively "SynCom") on the
sole cause of action alleged against them by Diamond Radio's complaint:
the 1st cause of action for declaratory relief in connection with a
settlement agreement reached on November 7, 2000, in Sacramento Superior
Court case no. 00AS01703. With that grant of summary judgment, no
causes of action against SynCom remain.
SynCom's Requests for Judicial Notice are granted.
SynCom's Objections to the Augsburger Declaration (which the Court
notes is unsigned) are ruled on as follows: objection nos. 1 - 23, are
SUSTAINED; objection nos. 24 and 25 are overruled.
Plaintiff Diamond Radio now seeks, with its president, Paula Nelson,
to file a Cross-Complaint against SynCom again alleging a cause of
action for declaratory relief, and adding causes of action for breach of
settlement agreement, unfair competition and rescission. These claims
are untimely and in direct conflict with this Court's ruling on the
summary judgment and the Maryland court's orders. The Court finds that
any other ruling would be unduly prejudicial to defendants SynCom, thus
motion is denied.
The motion to allow Paula Nelson to intervene as a plaintiff to the
complaint, through the filing of a First Amended Complaint is also
denied. Paula Nelson is the president of Diamond Radio. Her interests
are adequately protected by Diamond Radio, and if not, should have been
asserted at an earlier date. The Court's decision on the motion for
summary judgment would not have differed had Paula Nelson been a party.
The Court finds that any other ruling would be unduly prejudicial to
defendants SynCom, thus motion is denied.
The motion for leave to file a First Amended Answer to the
cross-complaint of the SynCom defendants is denied, without prejudice.
Although counsel for Diamond Radio represents that "No new matters are
pleaded in the amendments." The original five page answer contained 18
affirmative defenses, while the proposed amended answer is 18 pages long
and contains 20 affirmative defenses. (Motion, 14:22-23.) Some of the
allegations of the proposed Amended Answer are inconsistent with this
Court's grant of summary judgment to SynCom. The motion for leave to
amend is denied, without prejudice to a subsequent motion for leave to
file a revised amended answer not inconsistent with this Court's and the
Maryland court's prior rulings.
This minute order is effective immediately. No formal order nor
further notice is required, the tentative ruling providing sufficient
notiche
Department 53
February 24, 2003
Page 5
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***
ITEM 11 02AS00179 LAWRENCE VASQUES VS. SCOTT LEON JANSON
Nature of Proceeding: Motion To Compel
Filed By: TAMBORNINI, KYLE K.
Plaintiff's motion to compel responses to discovery is unopposed
and granted. Defendant served responses after the motion was filed.
Therefore, plaintiff is entitled to an order granting the motion.
Sanctions are denied as there is no substantive opposition.
This minute order is effective immediately. No formal order is
required, the tentative ruling being sufficient noitce.
***
ITEM 12 02AS01189 JIMMIE RUBALCAVA GOMEZ, ET AL VS. JAMES R. SEHR, ET AL
Nature of Proceeding: Motion To Compel
Filed By: SAVA, SANDRA L.
Dropped. This discovery dispute must be resolved by the
arbitrator.
***
ITEM 13 02AS01501 JOANNE IRVING, ET AL VS. THE CHASE LAW GROUP, ET AL
Nature of Proceeding: Motion For Reconsideration
Filed By: IRVING, TIFFANY
Continued to 03/03/2003
***
ITEM 14 02AS02083 RAJ SINGH VS. SOUTHGATE PROF CONDOMINIUM OWNERS ASSOCIATION
Nature of Proceeding: MOTION FOR RECONSIDERATION(2)
Filed By: SINGH, RAJ
Dropped. All matters involving this plaintiff are stayed pending
hearing on the motion to have him declared a vexatious litigant.
Department 53
February 24, 2003
Page 6
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***
ITEM 15 02AS02133 RONALD E. EDWARDS, ET AL VS, OCWEN MORTGAGE CO., INC. ET AL
Nature of Proceeding: Demurrer
Filed By: JENNINGS, MICHELLE P.
Defendant's demurrer to the second, fifth, and sixth causes of
action of the second amended complaint is sustained without leave to
amend.
Plaintiffs were in pro per. Apparently they have retained an
attorney although there is no substitution in the court's file. The
attorney filed an "opposition" on February 19. Not only is this
"opposition" late, it offers nothing of substance. Rather, plaintiffs
want their opposition to the prior demurrer to be considered their
opposition to this demurrer. The court declines to consider the prior
opposition.
On the second cause of action, bad faith, the court previously
ruled that there is no tort cause of action for breach of the covenant
of good faith and fair dealing. Plaintiffs were given leave to amend to
allege a contractual breach of the covenant. Instead they have again
attempted to state a claim sounding in tort and seeking tort damages.
The fifth cause of action is for intentional infliction of
emotional distress. The actions of which plaintiffs complain (set forth
in paragraph 33) are essentially breach of contract, i.e.allegedly
failing to properly and accurately credit payments to plaintiffs' loan
and initiating foreclosure on the basis of incorrect records despite
plaintiffs' efforts to correct the records. Allegations that are
essentially a breach of contract cannot support the tort of intentional
infliction of emotional distress.
The sixth cause of action is for negligent infliction of emotional
distress. This is not a separate cause of action. Rather, it is a cause
of action for negligence. Plaintiffs were previously given leave to
amend to state a claim for negligence based on a duty arising outside
the contract. The allegations of paragraph 33 and paragraphs 55 through
57 support a breach of defendant's obligations under the contract, not a
breach of a duty outside the contract. Alleging that defendants failed
to exercise due care with respect to processing, applying, etc the loan
payments is essentially an allegation that they breached the contract.
Defendant shall file and serve its answer to the remaining causes
of action by March 4, 2003
This minute order is effective immediately. No formal order is
required, the tentative ruling being sufficient notice.
Department 53
February 24, 2003
Page 7
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***
ITEM 16 02AS02577 CITY OF STOCKTON VS. JOE C. FEDI, ET AL
Nature of Proceeding: MOTION TO QUASH
Filed By: SCHAFFER, TODD A.
Continued on the court's own motion to March 12, 2003. The parties
are ordered to meet and confer no later than March 3, 2003 in order to
narrow the focus of the records to be produced, with respect to both
time and subject. Supplemental pleadings may be filed and served
personally or by fax five days prior to hearing. Moving party must
inform the court at the earliest opportunity if the matter has been
resolved and can be taken off calendar.
This minute order is effective immediately. No formal order
pursuant to CRC rule 391 or other notice is required.
***
ITEM 17 02AS02925 NILKARY LISBEL MANSU, ET AL VS. CARPENTER CO., ET AL
Nature of Proceeding: Motion To Compel
Filed By: HARBISON, JOSEPH F.
Continued to March 25, 2003 pending the decision of Department 47
on defendants' motion to consolidate this action with Bainbridge v
Carpenter, case number 02AS06839.
***
ITEM 18 02AS03675 MELVIN P. JOHNSON VS. KYLE SWARENS, ET AL
Nature of Proceeding: Demurrer
Filed By: COLT, DOUG W.
The demurrer of California State Automobile Association is
sustained without leave to amend. Plaintiff may not bring a direct
action against an insurer prior to obtaining a judgment against its
insured. Insuance Code Section 11580.
Defendant shall submit a formal order and judgment of dismissal.
Department 53
February 24, 2003
Page 8
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***
ITEM 19 02AS05561 MAJOR SINGH CHAUHAN VS. DANYAL JILANI, ET AL
Nature of Proceeding: Default Hearing
Filed By: CAPP, DAWN
Appearance Required.
***
ITEM 20 02AS06331 MICHAEL D. STORMAN VS. COUNTY OF SACRAMENTO
Nature of Proceeding: DEMURRER
Filed By: ROSENQUIST, JOY C.
Plaintiff has offered no substantive opposition to the demurrer.
Instead he states he "agrees to amend his complaint to address the
issues raised in the demurrer." The demurrer is sustained with leave to
amend. Plaintiff is directed to give close attention to the points
raised in the demurring and reply papers before drafting a second
amended complaint.
The court appreciates the concerns raised by defendants in their
reply. Although the court is skeptical that plaintiff has any claim
against defendant, the court will not sustain the demurrer without leave
to amend at this time. It appears unlikely that plaintiff has any cause
of action under FEHA as he was not an employee of the County. It is
also doubtful that he has a claim under the Unruh Act as there is no
suggestion of intentional discrimination. As for negligence, he must
plead a statutory basis for any such claim.
Any amended pleading shall be filed by March 4, 2003. Responsive
pleadings shall be filed 10 days thereafter, 15 days if service is by
mail.
This minute order is effective immediately. No formal order is
required, the tentative ruling being sufficient notice.
***
Department 53
February 24, 2003
Page 9
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ITEM 21 03AS00581 DAVID M. CAMACHO VS. KIMMAN D. LAVU,ETAL
Nature of Proceeding: MOTION TO APPOINT RECEIVER
Filed By: CARROLL, SHEILA LAMB
Plaintiff's motion for appointment of receiver is denied.
Plaintiff has the burden of establishing the necessity of this
equitable and radical remedy and he has not done so. This is a "drastic
remedy and is one which should not be invoked unless there is an actual
or threatened cessation or diminution of the business." In re Jamison
Steel Corp. (1958) 158 Cal.App. 27, 35.
Plaintiff is either the source of some of the problems or
misunderstands the fianancial and operational aspects of the business.
Each of his contentions has been adequately addressed by defendants. The
declarations submitted by Shipman and Lavu show they are operating the
business in a responsible manner and there is no danger of the business
being damaged.
Defendants have retained a bookkeeping service and are willing to
permit plaintiff to view those records. Performers are paid in cash, but
Elements retains receipts and will issue 1099 forms. Defendants are
paying bills as they come due. However, defendants are entitled to
require an itemization of work done, particularly when it is a
substantial amount such as the Callison bill. Defendants have shown
they are complying with applicable laws and ordinances such as occupancy
requirements and service of alcoholic beverages, and that the bar
manager is on file with ABC. Although operating costs were high in
Decemeber, there is no evidence that the business is in danger of
insolvency and no evidence that defendants are liquidating assets or
converting funds.
This minute order is effective immediately. No formal order is
required, the tentative ruling being sufficient notice.
***
ITEM 22 03CS00107 SHREE PRASAD VS. ADINA SBINGU
Nature of Proceeding: Petition To Compel Arbitration
Filed By: HIBBERT, PAIGE M.
Continued to 04/02/2003
Department 53
February 24, 2003
Page 10
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***
ITEM 23 99AS05213 JANICE LEE RINGLE JENSEN VS. PETER GEORGE MOELLER, ET AL
Nature of Proceeding: MOT EXCLUDE EXPERT WITNESS TESTIMONY
Filed By: UHRHAMMER, AMANDA
Dropped, on the assumption that the deposition went forward on
February 21, 2003.
***
ITEM 24 00AM01957 HOUSEHOLD FINANCE CORP. VS. NGA NGOC PHAM
Nature of Proceeding: MOTION TO VACATE JUDGMENT
Filed By: YALON, JEROME M.
Plaintiff's motion to vacate the void judgment entered against
defendant is granted. The court had no jurisdiction to enter the
judgment as defendant had filed for bankruptcy at the time the judgment
was entered.
***
ITEM 25 00AM07663 NO CAL COLL SERV. INC VS. LEOPOLDO PORTELA, ET AL
Nature of Proceeding: MOTION FOR EARNINGS WITHHOLDING
Filed By: CRIBB, STEVEN D.
Dropped. There is no proof of service of the motion on either the
judgment debtor or the judgment debtor's spouse. (CRC Rule 317(c).) In
addition, the spouse must be personally served for the court to have
jurisdiction.
***
ITEM 26 01AM03825 NCO FINANCIAL SYSTEMS, INC. VS. CHRISTOPHER J. VELASCO
Nature of Proceeding: CLAIM OF EXEMPTION
Filed By: SIMMONS, FRANK C.
The claim of exemption is denied in its entirety. The debt is for
medical bills, a necessity of life, and the court has no discretion in
this matter.
Department 53
February 24, 2003
Page 11
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***
ITEM 27 01AM09689 ALEKSANDR POSTORONKA, ET AL VS. GLORIA CURRY
Nature of Proceeding: MOTION FOR SANCTIONS
Filed By: ARATA, GEORGE S.
Defendant's motion for terminating sanctions is denied.
The court cannot find at this time that plaintiff has willfully
disobeyed its order of January 6, 2003. Plaintiff's attorney states
that plaintiff has moved to Washington and will respond to discovery and
attend his deposition. Plaintiff's attorney is reminded that it is his
responsibility to maintain contact with his client and insure that
discovery is answered and plaintiff does in fact attend his deposition.
The court will order plaintiff to answer outstanding discovery on
or before March 4, 2003. Plaintiff shall also attend his deposition on
or before March 14, 2003 at a time and place to be noticed by defendant
after meeting and conferring with plaintiff's attorney. If plaintiff
continues to ignore his discovery obligations, the court will entertain
a renewal of the motion for terminating sanctions.
Monetary sanctions are ordered in the amount of $765.50 (5.5 hours,
$135.00 per hour plus filing fee).
This minute order is effective immediately. No formal order is
required, the tentative ruling being sufficient notice.
***
ITEM 28 02AM04926 DON H. LEE VS. JAMES A. CHASE
Nature of Proceeding: MOTION FOR SANCTIONS
Filed By: HAZEN, JAMES C.
The Notice of Motion was served on January 30, 2003, giving 25 days
notice of a motion scheduled for February 24, 2003. Since insufficient
notice was given (26 days notice is required when notice is served by
mail), the motion is dropped. C.C.P. 1013. Defective notice deprives
the Court of jurisdiction to consider the merits of the motion. Lee v
Placer Title Co. (1994) 28 C.A.4th 503, 509, 511.
Department 53
February 24, 2003
Page 12
_________________
***
ITEM 29 02AM09725 SACRAMENTO CREDIT UNION, INC. VS. JERRY E. EVANS, SR.
Nature of Proceeding: Default Hearing
Filed By: ANGERER, JOHN M.
Dropped. At the initial hearing, the Court was concerned with the
summons and complaint being served at one address while the notice of
default was served by mail at another. This defect was sufficient to
cause the Court to decline to proceed with a default hearing, without
undertaking any further review.
In an attempt to cure the defect, plaintiff has now provided a proof
of service by mail of the notice of default to Jerry Evans, Sr at the
Anderson Lumber address. Upon review of the documents, the Court
determines that the proof of service of the summons and complaint in the
file do not reflect proper service of those documents. Defendant was
served by substitute service on a Cheri Walthoff, counter person, at
Anderson Lumber in North Highlands. There is no declartion that
defendant lives or works at Anderson Lumber. The notice of default was
mailed to defendant at an address in Rio Linda and at Anderson Lumber.
If defendant resides in Rio Linda, personal service must be attempted
there before the court will find the proffered substitute service valid.
***
