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
Barbara Baldy, Clerk
Vivian Carroll, Bailiff
February 28, 2003, 09:00
ITEM 1 01AS04440 DC TEMP, INC. VS. ALLIANCE FINANCIAL CAPITAL, INC.
Nature of Proceeding: Summary Judgment
Filed By: COLEMAN, JUNE D.
Dropped.
***
ITEM 2 01AS06254 DARREN CHESIN, ET AL VS. DEBBIE HENRY, ET AL
Nature of Proceeding: MOTION FOR AWARD OF ATTORNEYS FEES
Filed By: GRAY, RICHARD H.
Defendants Thomas Allen and Rosemary Allen's motion for attorney's
fees is granted. Plaintiffs voluntarily dismissed the Allen defendants.
The complaint alleged non-contract tort claims arising out of a written
contract between the parties. The fee provision authorizes recovery of
attorney fees by the prevailing party in actions arising out of the
contract. This language is sufficiently broad to cover tort as well as
contract claims. CCP section 1717(b)(2) bars recovery of fees for work
performed on contract claims when a defendant has been voluntarily
dismissed. However, the Allens may recover fees for work performed on
non-contract claims. Santisas v. Goodin (1998) 17 Cal.4th 599, 619.
The Court has discretion to determine that defendants should not be
declared prevailing parties if plaintiffs show that defendants were
dismissed because plaintiffs have achieved their litigation objectives
by settlement with moving defendants and/or other parties. Silver v.
Boatwright Home Inspection, Inc. (2002) 97 Cal.App.4th 443, 452.
However, the only evidence plaintiffs have produced as to why defendants
should not be declared prevailing parties is an excerpt of a deposition
transcript which they contend shows discovery abuse by the Allen
defendants. This evidence is not relevant to the issue of whether
defendants should be declared prevailing parties.
Therefore, the Court exercises its discretion to determine that the
Allen defendants are prevailing parties for the purpose of recovering
attorney fees as costs under CCP sections 1032 and 1033.5.
Moving defendants are awarded attorney fees and costs in the amount
of $16,638.50.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
Department 54
February 28, 2003
Page 2
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ITEM 3 02AS03706 PERRY COMMUNICATIONS GROUP, INC. VS. PHILLIP D. PERRY, ET AL
Nature of Proceeding: MOTION TO QUASH SUBPOENA/PROTECTIVE ORDER
Filed By: PETERSON, GLENN W.
Case transferred to Department 53
***
ITEM 4 02AS04350 LIVINGSTON & MATTESICH LAW CORP VS. SAC ALL-CARE, ETAL
Nature of Proceeding: Motion For Summary Adjudicatio
Filed By: KOONTZ, GLEN FRANKLIN
Dropped.
On February 3, 2003, cross-complainant dismissed the cause of action
for legal malpractice to which cross-defendant's motion for summary
adjudication is addressed. Therefore, this matter is dropped.
***
ITEM 5 02AS04438 MEYER & COOK INS. AGENCY, ET AL VS. INTERLINE INS. SERVICES
Nature of Proceeding: Demurrer
Filed By: COOPER, JAMES S.
The demurrer is sustained without leave to amend for failure to
state a cause of action.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required. Defendant shall submit a
judgment of dismissal for the Court's signature.
***
ITEM 6 02AS04438 MEYER & COOK INS. AGENCY, ET AL. VS. INTERLINE INS. SERVICES
Nature of Proceeding: MOTION TO STRIKE
Filed By: COOPER, JAMES S.
Defendant's motion to strike punitive damages allegations is granted
without leave to amend.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
Department 54
February 28, 2003
Page 3
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ITEM 7 02AS05630 RACHEAL FREDERICK VS. BAY VILLAGE APARTMENTS, ETAL
Nature of Proceeding: Petition To Compel Arbitration
Filed By: LOZANO, CHRISTOPHER
This matter is continued on the Court's own motion to March 28,
2003. The Court desires further briefing on the following issues: (1)
the application of Civil Code section 1953 to the arbitration provision;
and (2) the application of Pardee Construction Co. v. Superior Court
(2002) 100 Cal.App.4th 1081 on the analysis of whether the lease
agreement is a contract of adhesion. The Court is particularly
interested in the degree to which the availability of alternative
housing affects the analysis.
Supplemental briefs may be filed in Dept. 54 and served no later
than March 14, 2003.
***
ITEM 8 02AS05966 RIVERLAKE COMMUNITY ASSOCIATION VS. ROBERT JOSEPH PECORA
Nature of Proceeding: MOTION TO VAC AND DENY/INJ RELIEF/DECLATORY RELIEF
Filed By: PECORA, ROBERT
Continued to 04/28/2003
***
ITEM 9 02AS06736 MARK E. NOVAK VS. MASTEER MAINT. SYS., INC.
Nature of Proceeding: Motion To Compel
Filed By: CONLAN, MICHAEL J.
Dropped.
***
Department 54
February 28, 2003
Page 4
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ITEM 10 02AS06878 LESLIE M. SHAW VS. STEPHEN K. PARKINSON, M.D., ET AL
Nature of Proceeding: DEMURRER/MOTION TO STRIKES
Filed By: GIARDINA, LAWRENCE S.
Dropped.
***
ITEM 11 02AS07440 CAROLYN YOUNG VS. RODNEY WAYNE MAISENBACH SR.
Nature of Proceeding: Demurrer
Filed By: MACALUSO, JOSEPH T.
The demurrer is overruled. The complaint states a cause of action
and a general demurrer does not reach a claim for punitive damages.
Defendant shall file and serve his answer no later than March 10,
2003.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
***
ITEM 12 02AS07912 COLETTE A. THOMPSON VS. GERALD GOLDBERG, ET AL
Nature of Proceeding: MOT WITHHOLD LEVY & SET ASIDE RIGHT TO ATTACH
Filed By: THOMPSON, COLETTE A.
Plaintiff's motion to quash service of order to withhold is denied.
Plaintiff's remedy to challenge the imposition of the tax is to file a
claim for refund, pursue her administrative remedies, and thereafter, if
necessary, file an action for a refund.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
***
ITEM 13 03CS00020 IN RE: LARRY PHU LUONG
Nature of Proceeding: Petition For Change Of Name
Filed By: LUONG, LARRY P.
The petition is unopposed and is granted.
Department 54
February 28, 2003
Page 5
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ITEM 14 03CS00116 FREIDBERG LAW CORPORATION VS. JOSEPH F. HARBISON III
Nature of Proceeding: Petition To Compel Arbitration
Filed By: PULLEN, SUSANNA
Dropped.
***
ITEM 15 03CS00210 SUTTER HEALTH,ETAL VS. HEALTH NET.INC.,ETAL
Nature of Proceeding: Petition To Confirm Arb Award
Filed By: GOFF, STEPHEN L.
Continued to 03/20/2003
***
ITEM 16 99AS05746 CARL O. CHIARA, ET AL VS. MARK PEDERSEN, ET AL
Nature of Proceeding: MOT FOR ENFORCE OF CONFESSION OF JUDGM STLMT
Filed By: CARELLO, RONALD L.
Continued to 03/10/2003
***
ITEM 17 01AM07476 NCO FINANCIAL SYSTEMS, INC. VS. KELLIE L. ST. THOMAS, ET AL
Nature of Proceeding: MOTION FOR EARNINGS WITHHOLDING ORDER
Filed By: SIMMONS, FRANK C.
Plaintiff's motion for earnings withholding order against spouse of
judgment debtor is unopposed and is granted.
Department 54
February 28, 2003
Page 6
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ITEM 18 01AM09302 FUND RECOVERY SERVICES, INC., ET AL VS ROOSEVELT HARRIS ETAL
Nature of Proceeding: Motion To Compel
Filed By: HEAD, ANTHONY L.
Plaintiff's motion to compel answers to post judgment discovery is
unopposed and is granted. Defendant/judgment debtor shall serve
verified responses, without objection, to first set of post judgment
interrogatories and post judgment demand for production of documents no
later than March 10, 2003.
Sanctions are denied as the motion is unopposed.
The notice of motion does not provide notice of the Court's
tentative ruling system as required by Local Rule 3.04(D). Counsel for
moving party is ordered to notify defendant immediately of the tentative
ruling system and to be available at the hearing, in person or by
telephone, in the event defendant appears without following the
procedures set forth in Local Rule 3.04(B).
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
***
ITEM 19 02AM06726 MANJIT WALIA, ETAL VS. LUZ SALAZAR, ETAL
Nature of Proceeding: Motion To Compel
Filed By: ABEL, JEFFREY W.
Dropped.
***
ITEM 20 02AM07058 SAFE CREDIT UNION VS. PRISCILLA HARRIS, ET AL
Nature of Proceeding: MOT DEEM RE ADM AS ADM/(3) MT TO COMP/MT APPR AT DEPO/SANCTN
Filed By: CREEDON, JOHN D.
Plaintiff's motion to compel responses to discovery and deem request
for admissions as admitted is unopposed and is granted. Defendant Henry
Lavahn shall serve verified responses, without objection, to form
interrogatories (set no. 1), special interrogatories (set no. 1) and
request for production of documents (set no. 1) no later than March 10,
2003.
The truth of the matters asserted in the request for admissions (set
no. 1) served on defendant Henry Lavahn is hereby deemed admitted unless
responses substantially complying with CCP section 2033(f)(1) are served
prior to hearing. CCP section 2033(k).
Defendant Henry Lavahn shall appear for deposition at the time, date
and place to be renoticed by plaintiff.
Plaintiff is awarded mandatory sanctions pursuant to CCP sections
2033(k) and 2025(j) in the amount of $375.30 against defendant Henry
Lavahn.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 is required. Counsel for moving party is directed to
serve a copy of the minute order on defendant Henry Lavahn.
Department 54
February 28, 2003
Page 7
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ITEM 21 02AM10266 STATE RECOVERY SYSTEMS, INC. VS. CASEY BENNETT
Nature of Proceeding: MT TO QUASH SERVICE FOR LACK OF JUR
Filed By: BENNETT, CASEY
The motion to quash service of summons and complaint is denied.
Defendant shall file and serve a responsive pleading no later than March
10, 2003.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
***
ITEM 22 02UD04898 BANK OF NEW YORK, ET AL VS. COOPER & GARDENER, INC, ET AL
Nature of Proceeding: Summary Judgment
Filed By: RICHARDS, MARVIN E.
Dropped.
***
