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
Thomas M. Cecil, Judge
Barbara Baldy, Clerk
Vivian Carroll, Bailiff
January 17, 2003, 09:00
ITEM 1 01AS04842 REBECCA BROWN, ET AL VS. GRANT G. NUGENT, ET AL
Nature of Proceeding: Demurrer
Filed By: KoATZIN, LAWRENCE R.
Continued to 02/07/2003
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ITEM 2 02AS01676 JUSTIN MULFORD VS. AARON CHRISTOPHER UPDEGROVE, ET AL
Nature of Proceeding: Motion To Strike
Filed By: THOMAS, COREY
Defendant and cross-complainant Corey Thomas's motion to strike
answer to cross-complaint is denied. It is undisputed that the answer
was filed later than the time permitted under CCP section 432.10, but
before a default was taken against either cross-defendant. A party does
not have a right to file an answer later than the time limits imposed by
statute. Nor does the other party have the right to have the late
pleading stricken. Buck v. Morrossis (1952) 114 Cal.App.2nd 461,
464-465. Public policy favors disposition of litigation on its merits.
No sound reason for striking the answer having been shown by
cross-complainant, the Court exercises its discretion to deny the
motion.
Cross-complainant is advised that the notice of motion does not
include notice of the Court's tentative ruling system as required by
Local Rule 3.04(D). Cross-complainant should ensure that future motions
comply with this Court's Local Rules.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
Department 54
January 17, 2003
Page 2
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ITEM 3 02AS02406 FOLSOM LAKE FORD VS. PERSONAL TOUCH AUTO BODY
Nature of Proceeding: Default Hearing
Filed By: SULLIVAN, RICHARD A.
Appearance Required.
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ITEM 4 02AS03666 RIVER CITY BANK VS. RW PROFESSIONAL LEASING SERV CORP
Nature of Proceeding: MOTION FOR PROTECTIVE ORDER
Filed By: WEINER, RICHARD L.
Defendant's motion to stay proceedings or alternatively to stay
discovery is denied. Defendant is directed to appoint an agent for
discovery purposes within 30 days of this order. If defendant fails to
appoint an agent within the time allowed by the Court, plaintiff may
submit an ex parte application suggesting an appropriate agent.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
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ITEM 5 02AS05314 ELITA HOOGENDYK VS. CENTEX HOMES REALTY, ETAL
Nature of Proceeding: Demurrer
Filed By: STAGG, HOWARD J. IV
Continued to 02/14/2003
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ITEM 6 02AS07752 MOTOROLA, INC. VS. ACTION WIRELESS, INC.
Nature of Proceeding: Writ Of Attachment
Filed By: BOOSKA, STEVEN A.
The application for writ of attachment is unopposed and is granted
on the following conditions: (1) proof of timely service of the summons
and complaint and moving papers is filed in Dept. 54 prior to hearing;
and (2) an undertaking in the amount of $10,000 is filed.
Department 54
January 17, 2003
Page 3
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ITEM 7 99AS00592 PEOPLE OF THE ST OF CALIF VS. ALDEN JONATHON APPLETON, ET AL
Nature of Proceeding: MOT FOR LEAVE TO RATIFY SERVICE ON RECVR OF LAWSUIT BY MOVNT
Filed By: MATULICH, STEVEN R.
This matter is continued on the Court's own motion to be heard with
the Receiver's application for order approving sale of real properties.
That application was originally set for hearing by Judge Ford on
December 13, 2002. The hearing was continued to January 15, 2003, in
Dept. 47, at which time the matter was transferred to Dept. 54. The
parties have been directed to obtain a new hearing date from the
calendar clerk in Dept. 54. The Court finds that the motion for leave
to ratify service on Receiver of lawsuit by movants Ronald B. Simons
et.ux should be heard at the same time as the Receiver's application for
approval of sale.
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ITEM 8 01AM08022 KERRY DELAFAYETTE THROWER VS. OFFICER W. LAFFITTE, ET AL
Nature of Proceeding: Motion To Strike
Filed By: FAYARD, GREGORY T.
Defendants' motion to strike first amended complaint is denied. The
defects on which this motion is based are curable. Defendants concede
that plaintiff has submitted papers in opposition to this motion showing
that he has, in fact, complied with the Tort Claims Act. And, although
the amended complaint was not served in a timely manner, it has been
served. Under these circumstances, and in view of the policy favoring
litigation on its merits, the Court exercises its discretion to deny the
motion.
Plaintiff's request for judgment pursuant to his settlement offer is
also denied.
Defendants shall file and serve their answer to the first amended
complaint no later than January 27, 2003.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
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Department 54
January 17, 2003
Page 4
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ITEM 9 02AM08036 HOWARD MARCUS VS. CALIFORNIA DEPARTMENT OF CORRECTIONS ETAL
Nature of Proceeding: Demurrer
Filed By: BINKERD, GARY A.
Defendant Amos Acevedo, D.D.S.'s demurrer to the complaint is
sustained with leave to amend for failure to state a cause of action.
The complaint contains no charging allegations against defendant
Acevedo.
An amended complaint may be filed and served no later than January
27, 2003.
Plaintiff's request to appear by telephone is granted.
Defendant is advised that Local Rule 3.04(D) requires that notice of
the tentative ruling system must be provided in the notice of motion.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
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ITEM 10 02AM08036 HOWARD MARCUS VS. CALIFORNIA DEPARTMENT OF CORRECTIONS
Nature of Proceeding: DEMURRER
Filed By: BINKERD, GARY A.
Defendant Bill Haythorne demurrer to the complaint is sustained with
leave to amend for failure to state a cause of action. The complaint
contains no charging allegations against defendant Haythorne. An
amended complaint may be filed and served no later than January
27, 2003.
Defendant Mark Nessenson, D.D.S.'s demurrer to the complaint is
overruled. Although the complaint is not a model pleading, the
allegation in paragraph GN-3 that defendant Nessenson failed to
repair/restore plaintiff's broken tooth is sufficient to state a cause
of action for negligence.
Plaintiff's request to appear by telephone is granted.
Defendants are advised that Local Rule 3.04(D) requires that notice
of the tentative ruling system must be provided in the notice of motion.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
Department 54
January 17, 2003
Page 5
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