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
January 13, 2003, 09:00
ITEM 1 00AS00994 DAVID ADAIR, ET AL VS. ARGENTA PM , ET AL
Nature of Proceeding: MOTION TO COMPEL SPECIAL INTERROG
Filed By: FoARMER, CRAIG E.
Continued to 01/21/2003
***
ITEM 2 00AS00994 DAVID ADAIR, ET AL. VS. ARGENTA PM L.L.C., ET AL.
Nature of Proceeding: MOTION TO COMPEL PROD OF DOC
Filed By: FARMER, CRAIG E.
Continued to 01/21/2003
***
ITEM 3 00AS00994 DAVID ADAIR, ET AL. VS. ARGENTA PM L.L.C., ET AL.
Nature of Proceeding: MOTION TO COMPEL FORM INTERROG
Filed By: FARMER, CRAIG E.
Continued to 01/21/2003
Department 54
January 13, 2003
Page 2
________________
***
ITEM 4 01AS01193 ROBERT CHARLES BOYD, ET AL VS. SACRAMENTO COUNTY, ET AL
Nature of Proceeding: Summary Judgment
Filed By: HEWITT, SHANAN L.
Defendants Sacramento County and Sacramento County Sheriff's
Office's Motion for Summary Judgment/Summary Adjudication is ruled on as
follows:
Plaintiffs Robert and Cory Boyd allege that on February 3, 2000 they
suffered injuries when they were detained by the Sheriff's department.
The deputy sheriffs responded to an emergency call involving an
altercation at the intersection of E St. and Rio Linda Blvd. near
plaintiffs' residence. The deputies had been informed that shots had
been fired at the scene and that the suspect, Josh Imbler, may have gone
back into his home. Plaintiffs and Imbler live in the same duplex,
surrounded by a seven foot fence. When Cory Boyd came outside the fence
the deputies pointed their guns at him, told him to raise his hands in
the air, frisked him, handcuffed him and escorted him to the patrol car
where he was detained in the back seat for one and one-half hours. Cory
had told the deputies that he was acquainted with the suspect they were
seeking but that he had not seek Imbler for two weeks. Cory alleges
that the back of the patrol car was too small to accomodate him and that
he suffered physical and emotional injuries from being detained in the
car. When Robert Boyd came out to look for Cory, he was also told at
gunpoint to raise his hands, was frisked, handcuffed, and escorted to
another patrol car. Robert Boyd alleges that when he told a deputy that
he could not fit into the back of the patrol car because of his size,
the unidentified deputy side-kicked him in the shin and said "You'll
fit, I've had bigger guys than you back there before," and then closed
the door on his legs. Robert Boyd was detained for 40-50 minutes.
Plaintiffs made a report of the injury to the Sheriff's department but
never received documentation of their report. Robert Boyd states that
he was told by Officer Munn that "people tend to get injured in the back
of patrol cars."
Each plaintiff alleges the following causes of action: Violation of
42 USC 1983, false imprisonment/false arrest, intentional infliction of
emotional distress, negligent infliction of emotional distress, assault,
battery, and excessive force (Constitutional Violation).
Ruling:
1st cause of action Violation of 42 U.S.C. 1983 and 7th cause of
action excessive force (Constitutional violation): Summary Adjudication
is denied. Defendants argument is focused on the pleadings only.
Defendants have not submitted any evidence in their separate statement
establishing the absence of evidence of a custom, policy or practice.
Therefore, the Court treats the motion as one for judgment on the
pleadings as to this cause of action and grants the motion with leave to
amend. See Hobson v Raychem Corp. (1999) 73 Cal.App.4th 614, 625.
Plaintiff is given 20 days leave to amend to file an Amended Complaint
alleging sufficient facts to establish liability of the County for the
actions of the deputies.
2nd cause of action False Imprisonment/false arrest: Summary
Adjudication is denied. Defendants have not met their burden to
establish that the handcuffing and detention of the plaintiffs in the
patrol cars for an extended period of time was justified based on a
reasonable suspicion that a crime had been committed. Defendants have
not provided articulable facts that the detainees was involved in
criminal activity. Penal Code section 833.5(a). Therefore, the burden
never shifted to plaintiffs to submit evidence to raise a triable issue
of material fact.
3rd cause of action Intentional Infliction of Emotional Distress:
Summary Adjudication is denied. There are triable issues of material
fact as to whether the conduct supporting the 2nd and 5th causes of
action was outrageous.
4th cause of action Negligent Infliction of Emotional Distress:
Summary Adjudication is denied. Defendant argues only that no duty was
breached because defendants actions were reasonable. Defendants have
not met their burden to establish the the defendants actions were
reasonable based on the information known to them.
5th cause of action Assault: Summary Adjudication is granted. The
scope of the allegations in the Complaint are limited to the deputies
pointing their guns at both plaintiffs and telling them to raise their
hands. This conduct was reasonable as a matter of law, given the
circumstances that the officers believed that the suspect may be hiding
in the backyard of the residence behind a 7 foot wood fence.
6th cause of action Battery: Summary Adjudication is denied.
Defendants contend that the handcuffing the plaintiffs and kicking
Robert Boyd in the shins and then closing the door on his legs were
reasonable as a matter of law and discretionary acts for which
defendants immune. The evidence submitted by defendant is not
sufficient to meet their burden.
Defendant's evidentiary objections:
DEFENDANTS EVIDENTIARY OBJECTIONS: The Court rules on the
objections despite the fact that defendant, for the most part, did not
meet its initial burden, therefore plaintiff had no burden to obligation
to present evidence in opposition to the motion.
Defendant's objections to the following exhibits are sustained on
the ground that none of this evidence was cited in the separate
statement in opposition to the motion and therefore the Court need not
consider it. United Community Church v Garcin (1991) 231 Cal.App.3d
327, 337: Exhibits 1 (Robert Boyd Declaration), 2 (Imbler statement), 5
(Richardson statement), 6 (unknown deposition), 9 (unknown deposition),
10 (unknown deposition), 11 (unknown deposition), 12 (unknown
deposition), 13A (legal sourcebook), 13b (unknown deposition), 14 (legal
sourcebook), 17 (unknown deposition), 18 (Egger witness statement), 19
(Cory statement) 20 (letter from Kaiser), 21 (medical record), 22 and 23
(photos), 24 (Dr.'s deposition), 25 (Bogardus declaration). In
addition, the deposition exhibits do not comply with CRC 316(a).
The objections to all exhibits on the ground none were authenticated
is sustained as to all exhibits but No. 1 and the Mickelson and Kennedy
Deposition transcripts.
The objections to Exs. 2, 3, 4, 5, 22, and 23 on the ground of
hearsay are overruled.
The hearsay objections to Ex 19, 20, 22, 23 are sustained.
Summary Judgment is denied.
Plaintiff to prepare a formal order pursuant to CRC 391.
Department 54
January 13, 2003
Page 3
________________
***
ITEM 5 01AS01408 AMERICAN RECOVERY SERVICES INCORP. VS. CARNIVAL OF FUN, INC.
Nature of Proceeding: Motion To Strike
Filed By: RITTER, AUDREY M.
Plaintiff's motion for terminating and monetary sanctions is denied.
Plaintiff has not shown willfull failure to comply with the Court's
order of November 4, 2002. Plaintiff did not submit a separate
statement pursuant to CRC Rule 335 demonstrating how the discovery
responses received were insufficient. The only evidence before the
Court is that the responses were served four days later than required by
the order.
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).
Here, plaintiff has not shown that the responses were deficient in
any manner other than untimely service, or that a motion to compel
further responses would have been ineffective in obtaining the discovery
sought. Under these circumstances, imposition of a terminating sanction
would serve only a punitive purpose.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
***
ITEM 6 01AS01714 FRED SMITH, ET AL VS. KEN STRATTON, ET AL
Nature of Proceeding: Summary Judgment
Filed By: REUSCH, JEFFREY P.
Continued to 02/10/2003
Department 54
January 13, 2003
Page 4
________________
***
ITEM 7 01AS01726 KIM L. RYAN V. VIRGIL R. LANOZA
Nature of Proceeding: MOTION TO STRIKE
Filed By: JAKOB, CHARLES Q.
Cross-defendant's motion to strike portions of the cross-complaint
is denied. Given the ruling on cross-defendant's demurrer and the lack
of prejudice to cross-defendant, the court declines to micromanage an
action already plagued by excessive pleading. The court sees no
beneficial end justifying either the motion or a ruling.
This minute order is effective immediately. No formal order
pursuant to CRC rule 391 or other notice is required.
***
ITEM 8 01AS01726 KIM L. RYAN VS. VIRGIL LANOZA
Nature of Proceeding: Demurrer
Filed By: JAKOB, CHARLES Q.
Cross-defendant Kim L. Ryan's demurrer to the first amended
cross-complaint is ruled upon as follows.
Cross-defendant's demurrer to the first cause of action, fraud, is
sustained with leave to amend for failure to state facts sufficient to
constitute a cause of action. The amended cross-complaint alleges that
cross-defendant made certain misrepresentations no later than February
1998. Cross-complainant filed his cross-complaint in October 2001, more
than three years later. He alleges that he did not discover the fraud
until April 2000 but the amended cross-complaint does not plead facts
sufficient to justify the delayed discovery. April Enterprises, Inc. v.
KTTV (1983) 147 Cal.App.3d 805, 832. Further, fraud is not alleged with
the requisite specificity. The cross-complaint does not state who made
the representations, whether they were written or oral, under what
circumstances they were made, and how cross-complainant relied on them.
Finally, cross-complainant must have known by February 1998 that the
misrepresentation about cross-defendants being entitled to 40% of gross
was false because the contract, which cross-complainant signed in June
1997, states that cross-defendants are entitled to 40% only after
payment of costs and disbursements.
Cross-defendant's demurrer to the second cause of action,
concealment, is sustained with leave to amend for failure to state facts
sufficient to constitute a cause of action. The amended cross-complaint
alleges that no later than June 1998, cross-defendants concealed the
fact that they had discounted the medical liens by approximately
$38,000. As already noted, cross-complainant did not file his
cross-complaint until more than three years later. The amended
cross-complaint fails to plead sufficient facts to justify the delayed
discovery. Id. Further, as with the first cause of action, the
requisite specificity is absent. Finally, with respect to
cross-defendants' communication with former counsel about fees, the
amended cross-complaint does not allege intent to deceive, reliance, or
injury.
Cross-defendant's special demurrer to the third cause of action,
breach of fiduciary duty, on the ground of uncertainty, is overruled.
The allegations in paragraph 25 are not inconsistent with those in the
remainder of the complaint. Although not a model of pleading, the cause
of action is sufficient to apprise cross-defendant as to the issues
raised by cross-complainant.
Cross-defendant's special demurrer to the fourth cause of action,
breach of contract, is sustained with leave to amend on the ground of
uncertainty. It is impossible to determine whether the cause of action
is for breach of contract or for breach of the covenant of good faith
and fair dealing.
Cross-complainant may file and serve an amended complaint no later
January 23, 2003. Cross-defendant may file and serve a response no
later than February 3, 2003.
Cross-defendant's request for judicial notice is granted.
This minute order is effective immediately. No formal order
pursuant to CRC rule 391 or other notice is required.
Department 54
January 13, 2003
Page 5
________________
***
ITEM 9 01AS03864 CA DEPT OF VET AFFS VS. GREENBACK ESTS UNIT HO ASSOC, ET AL
Nature of Proceeding: Demurrer
Filed By: CHON, SAM Y.
Defendant Greenback Estates Unit No. 3 Homeowners Association's
demurrer to the first amended complaint is sustained/overruled as
follows:
First cause of action for quiet title: overruled. The HOA's prior
lien and foreclosure have put a cloud on the title, which is properly
addressed in this cause of action.
Second cause of action for wrongful occupancy: overruled. This
cause of action contains the essential allegations of ownership,
reasonable value of use of property and non-payment. Richmond Wharf &
Dock Co. (1919) 181 Cal. 454, 457-458. The ten-year statute of
limitations under CCP section 315 applies.
Third cause of action for negligence: sustained without leave to
amend for failure to state a cause of action. Plaintiff concedes this
cause of action is time-barred.
Defendant shall file and serve its answer no later than January 23,
2003.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
***
ITEM 10 01AS04376 DANIELLE FURTADO VS. CHRISTOPHER KANE D.D.S.
Nature of Proceeding: Motion To File Amended Complai
Filed By: FOSTER, CRAIG D.
Plaintiff's motion for leave to file first amended complaint is
granted. The trial date was continued on defendant's request. Any
defect in the pleading or issues with respect to reopening discovery may
be addressed by appropriate motion. The first amended complaint may be
filed and served no later than January 23, 2003. The Clerk will not
separately file the proposed first amended complaint submitted with the
moving papers.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
Department 54
January 13, 2003
Page 6
________________
***
ITEM 11 01AS04878 JANISE BECKER VS. HANG NGUYEN
Nature of Proceeding: Motion To Dismiss
Filed By: CORLESS, CASEY L.
Defendant's motion to dismiss 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 October 28, 2002, did not appear for
deposition duly noticed for December 11, 2002, and does not oppose this
motion. 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. As
responses favorable to defendant would entitle defendant to judgment in
his favor, a terminating sanction would not result in a windfall. 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. Defendant shall submit a
judgment of dismissal for the Court's signature.
***
ITEM 12 01AS04984 UNIVERSAL NETWORK DEVELOPMENT CORP VS. 800 MAKE READY, INC.
Nature of Proceeding: Motion To Compel
Filed By: THOMAS, MICHAEL J.
Plaintiff's motion to compel depositions is unopposed and is
granted. Defendant and cross-complainant 800 Make Ready shall produce
Eric Luttge, William McDermott, and its person most knowledgeable
regarding the allegations in its cross-complaint for deposition on a
date, time and location to be renoticed by plaintiff. Plaintiff has
informed the Court that defendant has filed bankruptcy. The Court finds
that depositions of a cross-complainant concerning issues raised by a
cross-complaint do not violate the automatic stay.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
***
ITEM 13 01AS04984 UNIVERSAL NETWORK DEVELOP CORP., VS. 800 MAKE READY, INC.
Nature of Proceeding: MOT TO ENFORCE COURT DISC ORD
Filed By: THOMAS, MICHAEL J.
Plaintiff's motion to enforce discovery orders and for sanctions is
unopposed and is granted. Cross-complainant 800 Make Ready shall serve
verified further responses, without objection, to form interrogatories
(set two) and special interrogatories (set one), as previously ordered
on November 20, 2002, by this Court, no later than January 23, 2003.
The Court finds that discovery relating to the cross-complaint does not
violate the automatic stay.
Plaintiff is awarded sanctions in the amount of $1,170 against
cross-complainant 800 MR.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
Department 54
January 13, 2003
Page 7
________________
***
ITEM 14 01AS06742 GETZ FAMILY TRUST, ET AL VS. MERCEDES-BENZ OF BAKERSFIELD
Nature of Proceeding: Motion To File Amended Complai
Filed By: POST, DAVID W.
Plaintiffs' motion to file first amended complaint is granted.
Leave to amend is liberally granted, and the Court sees no reason not to
apply that rule on this record.
The first amended complaint may be filed and served no later than
January 23, 2003. The Clerk will not separately file the proposed first
amended complaint submitted with the moving papers.
Defendant's request to redesignate this case must be submitted to
the appropriate ACT department.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
***
ITEM 15 02AS03484 CRISTOBAL R. GUAJARDO, ET AL VS. JTS COMMUNITIES, INC, ET AL
Nature of Proceeding: Motion To Strike
Filed By: BARRETT, DAVID S.
Defendant J&L Properties' motion to strike is denied. See ruling on
demurrer.
Defendants JTS Communities, Beazer Homes, and Advantage Group's
motion to strike attorney fees allegations is granted with leave to
amend. The complaint does not state facts showing entitlement to
attorney fees by contract or statute. The motion is denied as to
punitive damages allegations, as these allegations are supported by the
allegations of fraud.
An amended complaint may be filed and served no later than January
23, 2003.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
***
Department 54
January 13, 2003
Page 8
________________
ITEM 16 02AS03484 CRISTOBAL R. GUAJARDO, ET AL VS. JTS COMMUNITIES, INC, ET AL
Nature of Proceeding: Demurrer
Filed By: BARRETT, DAVID S.
The demurrer to the first amended complaint is sustained/overruled
as follows:
First cause of action for misrepresentation against JTS and
Advantage Group: overruled.
Second cause of action for quiet title: sustained with leave to
amend for failure to join necessary and indispensable parties. The
Court grants defendants' request to take judicial notice of the
certified copy of the recorded Plat Map for Lot 49 attached as Exhibit A
to defendants' demurrer. The Plat Map indicates that the owners of Lots
44 and 45 may claim an interest in the disputed property.
Third cause of action for trespass against JTS, Advantage Group, and
Beazer: overruled.
Fifth cause of action for breach of fiduciary duty against Advantage
Group: sustained without leave to amend for failure to state a cause of
action.
Defendant J&L Properties' demurrer to the entire complaint on the
ground that no cause of action is stated as to it is overruled. In the
absence of a demurrer on the sufficiency of the alter ego allegations,
all causes of action alleged against defendant JTS Communities, Inc. are
alleged against defendant J&L Properties through the alter ego
allegations.
An amended complaint may be filed and served no later than January
23, 2003.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
***
ITEM 17 02AS04104 WILLIAM O. WALLACE VS. JAMES H. WALLACE
Nature of Proceeding: MOTION TO DISCOVER
Filed By: WALLACE, WILLIAM O.
Plaintiff has filed a Motion to Discover that is not accompanied by
a proof of service, and a Request for Admissions that is accompanied by
a proof of service. The motion is not authorized by California law. No
issue is raised with respect to the request for admissions. Therefore,
the hearing is dropped.
Department 54
January 13, 2003
Page 9
________________
***
ITEM 18 02AS04480 NORTHRIDGE PARK HOMEOWNERS ASSOC. VS. JOAN BORREGO
Nature of Proceeding: Summary Judgment
Filed By: CHON, SAM Y.
Plaintiff's motion for summary judgment is unopposed and is granted.
Plaintiff has produced evidence establishing that defendant failed to
pay assessments authorized by the CC&Rs, that a lien has been imposed on
defendant's property and that plaintiff is entitled to foreclose on the
lien. This evidence is sufficient to meet plaintiff's initial burden,
shifting the burden to defendant to produce evidence raising a triable
issue of material fact. Having filed no opposition to the motion,
defendant has not met her burden.
Plaintiff shall submit a formal order complying with CCP section
437c(g) and a judgment for the Court's signature.
***
ITEM 19 02CS01712 BLACK HILLS DERMATOLOGY, ET AL VS. ADAPT MEDICAL, INC., ETAL
Nature of Proceeding: MOTION TO VACATE SISTER STATE JUDGMENT
Filed By: CREEDON, JOHN D.
Defendant's motion to vacate sister state judgment is unopposed and
is granted. Defendant has shown grounds under CCP section 1710.40(a) to
vacate the judgment (there were insufficient minimum contacts for South
Dakota court to acquire personal jurisdiction over defendant).
The judgment entered on November 5, 2002, is hereby vacated.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
***
ITEM 20 02CS01812 BRIDGE, STRUCTURAL ORNAMNTL, ET AL VS. KOSHMAN STEEL, INC.
Nature of Proceeding: PETITION TO COMPEL ARBITRATION
Filed By: BENSON, SANDRA RAE
The petition to compel arbitration is unopposed and is granted on
condition that proof of timely service of the petition and moving papers
is filed in Dept. 54 prior to hearing. The proof of service must show
proper service under CCP section 1290.4.
The notice of hearing 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 respondent immediately of the
tentative ruling system and to be available at the hearing, in person or
by telephone, in the event respondent appears without following the
procedures set forth in Local Rule 3.04(B).
Department 54
January 13, 2003
Page 10
________________
***
ITEM 21 01AM09830 CARMEN B. HAWTHORNE VS. KYLE JEAN COUTTS
Nature of Proceeding: Motion To Dismiss
Filed By: WATERS, KIM
Defendant's motion to dismiss action or impose issue or evidentiary
sanctions is unopposed and is granted as follows. As plaintiff has not
complied with this Court's order of October 30, 2002, compelling
responses to request for production of documents, the following evidence
sanction is imposed: plaintiff may not introduce in evidence, for any
purpose, any document meeting the description of the documents requested
in defendant's request for production of documents (set one).
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
***
