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 27, 2003, 09:00
ITEM 1 00AS00542 RICHARD J. FISCHER VS. FAMILIES FOR CHILDREN, INC, ET AL
Nature of Proceeding: Summary Judgment
Filed By: GRAY , RICHARD R.
Continued to 02/20/2003
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ITEM 2 00AS06716 VELMA I. FOLLOWWILL VS. KATHLEEN CONNELL
Nature of Proceeding: Summary Judgment
Filed By: BOWERS, JILL
Dropped.
y
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ITEM 3 01AS03016 CARLA D. HAYWOOD, ET AL VS. STATE OF CA., ET AL
Nature of Proceeding: Demurrer
Filed By: RAGAN, JENNIFER L.
Continued to 02/13/2003
Department 54
January 27, 2003
Page 2
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ITEM 4 01AS05002 USAA PROPERTY & CASUALTY INSUR VS. GEORGE D. WAGNER, ET AL
Nature of Proceeding: Summary Judgment
Filed By: LAURIA, ANTHONY D.
The undisputed facts are that the minor admitted in juvenile court that
on or around the date of November 2nd of 2000, he willfully, unlawfully
and maliciously set fire or burnt a property of Rio Americano School, a
box; the minor also admitted he recklessly and unlawfully set a fire to
or burnt a structure, the Little Theater building at Rio Americano
School. The insurance policy at issue provides coverage for damage
caused by an occurrence. The policy defines Occurrence to mean an
accident. An intentional act is not an accident and intentional acts
are not occurrences within the meaning of the policy language.
Northland Ins. Co. v Briones (2000) 81 C.A.4th 796, Lipson v Jordache
Enterprises Inc. (1992) 9 C.A.4th 151. The fact that the minor may not
have intended to cause the harm suffered is irrelevant: what counts is
whether the minor intended to commit the act. Quan v Truck Ins.
Exchange (1998) 67 C.A.4th 583, Collin v American Empire Ins. Co. (1994)
21 C.A.4th 787. Since the damages were not caused by an occurrence, as
defined in the policy, there is no duty to defend or indemnify under the
policy as to either the minor or his parents. California Casualty Ins.
Co. v Northland Ins. Co. (1996) 48 C.A.4th 1682, and the Hartford,
Altieri and Yamamoto decisions cited therein. There is also no coverage
due to Insurance Code 533 and Section II, Exclusion 1a of the policy.
George and Laurie Wagner argue they are entitled to a defense or
indemnification in the underlying restitution proceedings. The Court
agrees that the fact they were ordered to pay restitution, rather than
damages, is not dispositive of whether there is coverage. The amount
ordered serves to compensate the victim for the losses suffered due to
the act of another. It is not disgorgement of moneys wrongfully
acquired by the Wagners. It is monetary damages in the form of a
restitution order. Bank of the West v Superior Court (1992) 2 C.4th
1254, AIU Ins. Co. v Superior Court (1990) 51 C.3d 807. However,
Welfare & Institutions Code 730.7(e), states that nothing in that
section shall be construed to make an insurer liable for a loss caused
by the willful act of the insured or the dependents of the insured
pursuant to Section 533 of the Insurance Code. The statutory scheme
envisions that the minor and/or the parents are to pay when the minor's
willful misconduct causes damages to others. That scheme would be
thwarted if the parents could claim they were covered by insurance. It
is undisputed that the loss in question was caused by the willful act of
the minor, a dependent of the insured. The insurer is therefore not
required to pay the restitution ordered by the Court. The insurer's
argument that there is no coverage under California Special Provisions,
HO-CA (06-99), Liability Exclusions, Section II, 1, is rejected as it
states the insurer will not pay for punitive damages or exemplary
damages, fines or penalties. It does not mention restitution.
George and Laurie Wagner's objections to evidence are overruled. No
prejudice has been shown due to the "procedural" errors.
This minute order is effective immediately.
The prevailing party is directed to prepare an order for the court's
signature pursuant to CCP 437c(g). TERA PHARMACEUTICALS v. SUPERIOR
COURT(1985) 170 Cal.App.3d 530,
Department 54
January 27, 2003
Page 3
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ITEM 5 01AS05586 RICHARD JEROME DENNIS VS. COUNTY OF SACRAMENTO
Nature of Proceeding: Motion To Dismiss
Filed By: WHITMORE, LEEANNE E.
The motion to dismiss is granted. Plaintiff did not file and serve an
Amended Complaint within the time ordered by the Court or at any time at
all. C.C.P. 581(f)(2).
This minute order is effective immediately. No formal order is needed,
C.R.C. rule 391, nor is further notice of this ruling required.
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ITEM 6 01AS06084 DOROTHY DOLLY VALCOUR, ET AL VS. MYRON JOEL LOVE, ET AL
Nature of Proceeding: Motion To Compel
Filed By: HARBISON, JOSEPH F.
Plaintiffs' thinly disguised motion for reconsideration of the motion to
compel discovery of the Stokes and Love reports is denied. No new
facts, law or circumstances are shown, nor have plaintiffs complied with
any of the requirements of C.C.P. 1008. The court has decided this
issue.
Plaintiffs' motion to compel Ms. Alexander to bring the other documents
requested of her to her subsequent deposition is granted, as agreed to
by the District.
Plaintiffs' request for a monetary sanction is denied.
This minute order is effective immediately. No formal order is needed,
C.R.C. rule 391, nor is further notice of this ruling required.
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ITEM 7 01AS07368 AVRAM PALAMARYUK, ET AL VS. DOLORES B. MEYER
Nature of Proceeding: MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT
Filed By: STEPHENS, ALISA J.
The motion is dropped from the Court's calendar due to insufficient
notice being given to defendants. The Notice of Motion was served on
January 2, 2003, for a hearing on January 27, 2003, giving 25 days
notice. When Notice is served by mail, 26 days notice must be given.
C.C.P. 1005. Defective notice deprives the Court of jurisdiction to
consider the motion. Lee v Placer Title Co. (1994) 28 C.A.4th 503, 509,
511.
Department 54
January 27, 2003
Page 4
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ITEM 8 01AS07640 DEBORAH DOTY, ET AL VS. MARK J. BIXBY, ET AL
Nature of Proceeding: Motion To File Amended Complai
Filed By: WILSON, DENNIS M.
The motion is dropped from the Court's calendar due to insufficient
notice being given to defendants. The Notice of Motion was served on
January 6, 2003, for a hearing on January 27, 2003, giving 21 days
notice. When the Notice is served by a method providing for overnight
delivery, the required 21 day period of notice before the hearing shall
be increased by two calendar days. C.C.P. 1005. Defective notice
deprives the Court of jurisdiction to consider the motion. Lee v Placer
Title Co. (1994) 28 C.A.4th 503, 509, 511.
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ITEM 9 02AS00716 ESTATE OF ELI SOLOMON TORRES, ET AL VS. CAL A. TERHUNE,ETAL
Nature of Proceeding: Motion To Compel
Filed By: NAGHASH, ROGER E.
A motion is made when filed and served, and the Court rules on the
motion based on the facts asserted as of the day it is made. C.C.P.
1005.5. As of January 9, 2003, the responses served to plaintiff's
discovery had not been verified. Unverified responses are equivalent to
no response at all. Plaintiff's motion is granted. Defendant is
ordered to serve verified responses, without objections, to plaintiff's
Form Interrogatories, Demand for Production of Documents, and Request
for Admission, sets one.
Defendant states that since the motion was filed, he has served
responses that comply with the code. Defendant does not have to
re-serve those responses, as ordered by the Court, if he feels those
responses comply with the Court's order. He takes the chance however
that plaintiff may not agree and may make motions seeking sanctions,
including terminating sanctions.
The Court will consider all the circumstances presented in order to
determine whether to award sanctions. Under the circumstances
presented, the request for a monetary sanction is denied. The Court
also notes that plaintiff's "opposition" is that the motion should be
denied since he has, since the motion was made, complied with his
discovery obligations by serving the exact same responses, this time
with proper verifications.
This minute order is effective immediately. No formal order is needed,
C.R.C. rule 391, nor is further notice of this ruling required.
Department 54
January 27, 2003
Page 5
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ITEM 10 02AS03888 A.C.M. INVESTOR SERVICES, INC. VS. JAVAD KAVIANI, ET AL
Nature of Proceeding: MOT FOR AWD OF ATTY FEES IN CONNECT W/MOT TO EXP NTC OF PEND
Filed By: KOLB, KLAUS J.
The motion for an award of attorney's fees pursuant to C.C.P. 405.38
is granted. Mr. Odbert is awarded reasonable attorney's fees of
$8,898.95. The Court did not implicitly deny the prior request, nor has
it been waived by defendant.
This minute order is effective immediately. No formal order is needed,
C.R.C. rule 391, nor is further notice of this ruling required.
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ITEM 11 02AS04760 COUNTY OF SACRAMENTO VS. MAX D. STONE ET AL
Nature of Proceeding: Default Hearing
Filed By: CAMPBELL, ALAN C.
Appearance Required.
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ITEM 12 02AS06004 RYAN C. CHATFIELD VS. HERTZ LOCAL EDITION CORP
Nature of Proceeding: Demurrer
Filed By: CARVER, MICHAEL L.
Mr. Chatfield demurs to defendant's Second, Fourth, Fifth and Sixth
Affirmative Defenses on the ground they fail to state facts sufficient
to constitute a defense because equitable defenses are not permitted in
this action as a matter of law. The demurrer on that ground is
overruled. Cortez v Purolator Air Filtration Products Co. (2000) 23
C.4th 163.
This minute order is effective immediately. No formal order is needed,
C.R.C. rule 391, nor is further notice of this ruling required.
Department 54
January 27, 2003
Page 6
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ITEM 13 02AS06638 NEHEMIAH CORP. OF CA VS. DON F. HARRIS, ET AL
Nature of Proceeding: MOTION FOR PROTECTIVE ORDER
Filed By: MENNEMEIER, KENNETH C.
The Confidentiality Designation placed on Defendants' C.C.P. 2019(d)
Identification of Trade Secrets is ordered removed, pursuant to
defendants' agreement.
The motion for a protective order is denied. Plaintiff has identified
its trade secret with reasonable particularity. Whyte v Schlage Lock
Co. (2002) 101 C.A.4th 1443.
This minute order is effective immediately. No formal order is needed,
C.R.C. rule 391, nor is further notice of this ruling required.
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ITEM 14 02CS01686 YVONNE B. CRAWFORD VS. CALIFORNIA STATE AUTO. ASSOC., ET AL
Nature of Proceeding: MOT FOR ORDER IMPOSING TERMINATING AND MONETARY SANCTIONS
Filed By: HARRIS, MARK R.
By the time the motion was made, December 30, 2002, respondent had been
served with the discovery ordered by the Court. Admittedly, the
discovery was served after December 13, 2002, the date ordered by the
Court. Respondent has not stated any prejudice from having the
responses served 17 days late. Terminating sanctions may not be imposed
if they would result in a windfall for the moving party. Caryl
Richards, Inc. v. Superior Court (1961) 188 Cal.App.2d 300, 303-304.
Since respondent has received the discovery it seeks, the request for a
terminating sanction is denied. The request for a monetary sanction is
denied since it appears the motion did not have to be made, as the
responses were served prior to the motion being made. C.C.P. 1005.5.
This minute order is effective immediately. No formal order is needed,
C.R.C. rule 391, nor is further notice of this ruling required.
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Department 54
January 27, 2003
Page 7
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ITEM 15 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.
The order of January 13, 2003, is hereby vacated.
The motion to vacate the sister state judgment is denied. The evidence
shows the exercise of jurisdiction over defendant was proper.
This minute order is effective immediately. No formal order is needed,
C.R.C. rule 391, nor is further notice of this ruling required.
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ITEM 16 02CS01724 PEOPLE VS. $5,890.26 U.S., 1993 LEXUS SC400 (ELLIOT NEAL)
Nature of Proceeding: Motion To Compel
Filed By: LEONARD, STEPHANIE
Real Party in Interest Elliot Neal is ordered to serve a written
response, without objections, to the People's Request for Production of
Documents, set one, no later than Tuesday, February 11, 2003.
The request for a monetary sanction is denied as the motion is
unopposed.
This minute order is effective immediately. No formal order is needed,
C.R.C. rule 391. The People are to serve Mr. Neal with a copy of the
Court's ruling forthwith.
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ITEM 17 99AS04676 CASCADES RESIDENTIAL OWNERS ASSO VS. H.C. ELLIOTT INC; ET AL
Nature of Proceeding: Demurrer
Filed By: LAWLEY, ELIZABETH WARDROP
Continued to 02/06/2003
Department 54
January 27, 2003
Page 8
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ITEM 18 02AM00498 FDN RECOVERY SERVS INC ET AL VS YAHWEH'S BEST GREEN & WOOD
Nature of Proceeding: MOTION FOR AWARD OF POST JUDGMENT ATTORNEYS FEES
Filed By: HEAD, ANTHONY L.
The motion is granted. Judgment creditor Fund Recovery Services is
entitled to post judgment attorney's fees of $1,961 from judgment debtor
Yahweh.
This minute order is effective immediately. No formal order is needed,
C.R.C. rule 391. Judgment creditor to serve judgment debtor with a copy
of the Court's ruling forthwith.
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ITEM 19 02AM01872 SHALU BATRA VS. SCOTT S. SHAW
Nature of Proceeding: MOT FOR ORD THAT TRUTH OF MATTERS DMD ADM/IMPOS OF M. SNCTNS
Filed By: DAVIS, JEFFREY W.
The Admissions, set one, served on defendant Scott S. Shaw, are not
deemed admitted as, prior to the hearing, defendant Shaw served proposed
responses that comply with C.C.P. 2033(f)(1). C.C.P. 2033(k).
A mandatory monetary sanction of $575.30 is awarded to plaintiff from
defendant Shaw.
This minute order is effective immediately. No formal order is needed,
C.R.C. rule 391, nor is further notice of this ruling required.
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ITEM 20 02AM03096 VALERIY MOSEYCHUK, ET AL VS. ALICIA BANNING
Nature of Proceeding: Motion To Compel
Filed By: TRIMBLE, SUZANNE M.
Plaintiffs Tatyana and Valeriy Mosechuk have not responded to discovery,
even after being ordered to do so by the Court. If the responses had
been as defendant expected, they would have shown that plaintiffs have
no facts, evidence or documents to show defendant is liable for their
injuries or that plaintiffs have any damages at all from the incident at
issue. Plaintiffs have not opposed the motion seeking terminating
sanctions. The motion is granted, the complaint is dismissed. In
addition, a monetary sanction of $550 is awarded to defendant from
plaintiffs, jointly and severally.
This minute order is effective immediately. No formal order is needed,
C.R.C. rule 391, nor is further notice of this ruling required.
Department 54
January 27, 2003
Page 9
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ITEM 21 02AM04188 FUND RECOVERY SERVICES, INC., ET AL VS. KIRK S. LYFORD ET AL
Nature of Proceeding: Motion To Compel
Filed By: HEAD, ANTHONY L.
Defendant Kirk S. Lyford, individually and dba Vivid Details, is ordered
to serve verified responses, without objections, to plaintiff Fund
Recovery Services Post Judgment Interrogatories and Demand for
Production of Documents, sets one, no later than Tuesday, February 11,
2003.
The request for a monetary sanction is denied as the motion is
unopposed.
This minute order is effective immediately. No formal order is needed,
C.R.C. rule 391. Fund Recovery to serve Mr. Lyford with a copy of the
Court's ruling forthwith.
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