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 28, 2003, 09:00
ITEM 1 00AS07222 JENNIFER LEE VS. JOHN S. EGLESTON
Nature of Proceeding: MOTION FOR ORDER IMPOSING TERM AND MONETARY SANCTIONS
Filed By: THYBERG, GREGORY A.
Defendant's motion for terminating sanctions is unopposed and is
granted. Plaintiff did not oppose the prior motion to compel discovery
responses and her appearance for deposition, did not comply with the
Court's order of September 23, 2002, and does not oppose this motion.
Under these circumstances, the Court finds that plaintiff has willfully
failed to comply with her discovery obligations. 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 request for monetary sanctions is denied as defendant failed to
request a specific amount supported by admissible evidence. CCP
section 2023(c).
Defendant shall submit a judgment of dismissal for the Court's
signature.
***
ITEM 2 01AS01052 UNION BANK OF CA, N.A., VS. EDWARD LATIN,
Nature of Proceeding: HRG ON PETITION FOR AUTHORITY TO FILE INVOLUNTARY BANKRUPTCY
Filed By: RHODES, PHILIP
The petition is unopposed and is granted as prayed. Petitioner
shall submit a formal order for the Court's signature.
Department 54
January 28, 2003
Page 2
________________
***
ITEM 3 01AS02154 MARGARET A. PARKER VS. CA STATE UNIVERSITY SACRAMENTO, ET AL
Nature of Proceeding: Summary Judgment
Filed By: REAGER, GLENDA N.
Continued to 03/07/2003
***
ITEM 4 01AS02212 JERRY THOMASON, ET AL VS. MATTHIAS STARKS
Nature of Proceeding: MOTION TO COMPEL/JOINDER
Filed By: FASAGRANDA, ANGELA M.
Plaintiff's joinder in motion to compel cross-complainant to respond
to discovery is denied. The joinder was served by mail on January 17,
2003, 11 days prior to hearing. The joinder was not filed until January
21, 2003. Under Local Rule 3.19, a joinder will be considered only if
the party has complied with all procedural requirements for the filing
of motions, including proper notice (26 days notice for motions served
by mail).
Cross-defendant City of Sacramento's motion to compel
cross-complainant Matthias Starks to respond to special interrogatories
(set one) and request for production of documents (sets one and two) is
unopposed and is granted. Cross-complainant shall serve verified
responses, without objection, no later than February 10, 2003.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
***
ITEM 5 01AS05906 JOSEFINA HIGNUTT VS. HOME DEPOT U.S.A., INC.
Nature of Proceeding: MOTION FOR TERMINATING AND MONETARY SANCTIONS
Filed By: KILDUFF, DOUGLAS M.
Dropped.
Department 54
January 28, 2003
Page 3
________________
***
ITEM 6 01AS07084 GINGER BONTON, ET AL VS. CANDICE IRENE PICKET, ET AL
Nature of Proceeding: Summary Judgment
Filed By: MACKEY, STEPHEN J.
Defendants Trinity Universal Insurance Company and Charter Auto
Program's motion for summary judgment is granted.
The complaint alleges that plaintiff purchased an automobile
insurance policy for one year beginning July 14, 2000; that moving
defendants failed to credit her policy with a "Persistency Discount;"
that due to various problems with the policy her agents (non-moving
defendants) promised to credit her policy with one month's premium, but
did not; that she made all her monthly payments in advance of the due
date; that she did not receive a Notice of Cancellation at any time
prior to the cancellation of the policy; that she made a payment on
November 2, 2000 which was not credited to her; and that moving
defendants refused to provide coverage for her injuries arising from a
serious accident with an uninsured motorist on November 20, 2000, by
improperly claiming that her policy had lapsed on October 30, 2000, for
non-payment of premium.
The record establishes the following.
The policy commenced on July 14, 2000, and monthly payments were due
thereafter on the 14th of each month. Plaintiff made the initial July
14 payment. (Decl. Ginger Bonton, para. 12)
On August 15, a notice of cancellation was mailed to plaintiff at
the address set forth on the policy for failure to make a payment by
August 14. (Def. Exh. C) Plaintiff's agent, Tri-Valley, issued a check
in the amount of $135.60 on September 7, 2000. (Def. Exh. D) Plaintiff
was credited for the August payment and the policy was reinstated on
September 22. (Def. Exh. D) (Although the check and no loss affidavit
referenced an incorrect policy number, the payment was credited to the
correct policy number and the notice of reinstatement references the
correct policy number.)
On August 23, 2000, defendants credited plaintiff's annual premium
with a Persistency Discount in the amount of $473. (Def. Exh. H; Plf.
Exh. 11)
On September 22, a notice of cancellation was mailed to plaintiff at
the address set forth on the policy for failure to make a payment by
September 14. (Plf. Exh. 12) Plaintiff made a payment by check dated
September 25. (Def. Exh. E).
On October 16, a notice of cancellation was mailed to plaintiff at
the address set forth on the policy for failure to make a payment by
October 14. (Def. Exh. F; Mahon Decl.) The notice stated that
coverage would continue if payment was postmarked on or before October
29; otherwise the policy would be cancelled effective 12:01 a.m. October
30, 2000.
Plaintiff made no further payment until November 2, 2000. (Plf.
Exh. 15). Plaintiff admits that the check was not presented or cashed
by defendants. (UMF #16; Decl. Ginger Bonton, para. 17)
This evidence establishes that plaintiff was required to and did not
make the payment due on October 14, and therefore defendants have met
their burden of showing that the cancellation of the policy was proper.
The burden shifts to plaintiff to produce evidence raising a triable
issue of material fact.
Plaintiff contends that her address was incorrectly stated on the
policy (listing her street name as Walorga instead of Walerga) and that
she did not receive a notice of cancellation after she mailed a payment
on November 2, 2000. (Decl. Ginger Bonton, paras. 16, 21) She does
not, however, dispute that the notice of cancellation dated October16,
2000 was mailed to the address on the policy, nor does she affirmatively
aver that she did not receive that cancellation notice. Although
plaintiff states that correspondence was sporadic, she does admit
receiving at least some correspondence despite the incorrect address.
(See Decl. Ginger Bonton, para. 11)
Plaintiff contends that she was current in all her payments, as her
agents' check dated September 7 was to apply to the payment due
September 14; her check dated September 25 applied to the payment due
October 14; and her check dated November 2 applied to the payment due
November 14. However, plaintiff has produced no evidence that she ever
wrote a check or made other arrangements to make the payment due August
14. The only payment shown on this record that could apply to the
August 14 payment was the agents' check dated September 7, which
resulted in the reinstatement of her policy.
Plaintiff has not produced evidence sufficient to create a triable
issue of material fact that her insurance policy was improperly
cancelled.
Defendants' unrefuted showing that the policy was properly cancelled
disposes of all causes of action in the complaint.
Defendants' objections to statements on information and belief in
the Kenneth Bonton and Ginger Bonton declarations are sustained.
Defendants shall submit a formal order complying with CCP section
437c(g) and CRC Rule 391, and a judgment for the Court's signature.
Department 54
January 28, 2003
Page 4
________________
***
ITEM 7 01AS07840 LLOYD CHRISTENSEN VS. TROY DANIEL SHERMAN, ET AL
Nature of Proceeding: DEFAULT HEARING (TROY SHERMAN)
Filed By: KELLY, MICHAEL R.
Appearance Required.
***
ITEM 8 01AS07840 LLOYD CHRISTENSEN VS. TROY DANIEL SHERMAN, ET AL
Nature of Proceeding: DEFAULT HEARING (DIETRA D. JOHNSON)
Filed By: KELLY, MICHAEL R.
The declarations submitted in support of the default support a judgment
as follows:
Special damages of $1591.52
General damages of $35,000.00
Costs of $249.00
Total Judgment of $36,840.52
That will be the order of the court unless plaintiff submits further
evidence at the time of hearing.
***
ITEM 9 02AS02674 ANTHONY MICHAEL ALMEIDA JR VS. CATHOLIC HEALTHCARE W ET AL
Nature of Proceeding: Motion To Compel
Filed By: MCPHERSON, DENNIS P.
Plaintiff Anthony Michael Almeida Jr. is ordered to serve verified
responses to special interrogatories nos. 1, 2, 3, 4, 5, 7, 9, 10, 11,
12, 15, 16, 17, 18, 22, 23, 24, 25, 27, 30, 31, 32, 33, and to request
for production of documents no. 1 to defendant Catholic Healthcare West,
without objection, no later than February 7, 2003.
Defendant's motion is denied as to special interrogatories 8, 13,
14, 26 and as to request for production of documents no. 2.
Defendant is awarded monetary sanctions in the amount of $994
against plaintiff and his attorney, jointly and severally. Plaintiff's
opposition to the motion lacked substantial justification. Plaintiff's
request for sanctions is denied.
This minute order is effective immediately. No formal order
pursuant to CRC rule 391 or other notice is required.
Department 54
January 28, 2003
Page 5
________________
***
ITEM 10 02AS02778 PETER PINTO VS. THE SAC RIVERCATS BASEBALL CLUB, LLC,ETAL
Nature of Proceeding: Motion To Strike
Filed By: WHEELER, JOSEPH R.
Defendants' motion to strike is granted without leave to amend as to
the first count of the first amended complaint, and as to the first item
in the prayer for relief, but is otherwise denied.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
***
ITEM 11 02AS03794 RICK SHERWOOD VS. CHRISTOPHER PAPAS
Nature of Proceeding: DEFAULT HEARING
Filed By: O'CONNOR, TIMOTHY J.
Continued to 02/19/2003
***
ITEM 12 02AS04658 JESSICA LANGSHAW VS. JAROD POWERS
Nature of Proceeding: Default Hearing
Filed By: LANGSHAW, JESSICA
Appearance Required.
***
ITEM 13 02AS05800 GABRIELE BEARDSLEE VS. TERRY FURMANEK, ET AL.
Nature of Proceeding: Demurrer
Filed By: BLAINE, CARL P.
Defendants Terry Furmanek, E.J. Plesko & Associates, Inc., and
Summit House Apartments' demurrer to plaintiff Gabriele Beardslee's
complaint is ruled upon as follows.
Defendants' demurrer to the first cause of action, breach of
contract, is sustained with leave to amend for failure to state facts
sufficient to constitute a cause of action. Plaintiff's allegation that
she is an intended third party beneficiary of a contract between Kmart
Corporation and defendants is unsupported by either a copy of the
contract or a recitation of the contract's terms.
Defendants' demurrer to the third cause of action,
misrepresentation, is sustained with leave to amend for failure to state
facts sufficient to constitute a cause of action. Plaintiff's
allegations of fraud lack the requisite specificity, particularly with
respect to the corporate defendants. For example, plaintiff fails to
plead how she justifiably relied on the misrepresentations defendant
allegedly made to Sacramento County zoning officials.
Plaintiff may file and serve an amended complaint no later than
February 7, 2003. Defendants may respond no later than February 18,
2003.
This minute order is effective immediately. No formal order
pursuant to CRC rule 391 or other notice is required.
Department 54
January 28, 2003
Page 6
________________
***
ITEM 14 02AS06334 JIMMY GETTINGS VS. JAY TONEY
Nature of Proceeding: Demurrer
Filed By: MORALES, M. GALILEO
The demurrer and motion to strike are dropped from calendar. A
default was entered in this matter on December 2, 2002. In the absence
of an order setting aside the default, the court is without jurisdiction
to rule on either the demurrer or the motion to strike.
***
ITEM 15 02AS06816 NANCY WODDY VS. CALIFORNIA STATE AUTOMOBILE ASSOCIATION
Nature of Proceeding: Demurrer
Filed By: KIENTZY, HYON M.
Defendant California State Automobile Association's demurrer to the
second and fifth causes of action, which is unopposed, is ruled upon as
follows.
Defendant's demurrer to the second cause of action, breach of
fiduciary duty, is sustained without leave to amend for failure to state
facts sufficient to constitute a cause of action. The insurer-insured
relationship is not a fiduciary relationship. Vu v. Prudential Property
& Casualty Ins. Co. (2001) 26 Cal.4th 1142, 1151.
Defendant's demurrer to the fifth cause of action, failure to
acknowledge claim, is sustained without leave to amend for failure to
state facts sufficient to constitute a cause of action. There is no
private right of action for violation of 10 CCR section 2695.5, the
authority for which is Insurance Code section 790.03. Moradi-Shalal v.
Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287, 304.
Defendant may file and serve its answer no later than February 7,
2003.
The notice of motion does not provide notice of the court's
tentative ruling system as required by Local Rule 3.04(D). Moving
counsel is directed to contact opposing counsel forthwith and advise
them of Local Rule 3.04 and the court's tentative ruling procedure and
the manner of requesting a hearing. Moving counsel is ordered to appear
in person or by telephone in the event that opposing counsel appears for
the hearing without prior request.
This minute order is effective immediately. No formal order
pursuant to CRC rule 391 or other notice is required.
Department 54
January 28, 2003
Page 7
________________
***
ITEM 16 02CS00210 PEO VS. 2001 BOMBARDIE VESSEL, #7490PT, ET AL (GONZALES)
Nature of Proceeding: Motion To Strike
Filed By: LEONARD, STEPHANIE
Petitioner's motion to strike claim is unopposed and is granted.
Real Party in Interest Jose Gonzales did not oppose the prior motion
compelling responses to form and special interrogatories, did not comply
with the order, and has filed no opposition to this motion. The Court
finds that Real Party in Interest has willfully refused to comply with
his discovery obligations. The Court finds further that, with respect
to the special interrogatories, responses favorable to petitioner would
entitle petitioner to judgment in its favor. Thus, a terminating
sanction would not result in a windfall. See Puritan Ins. Co. v.
Superior Court (1985) 171 Cal.App.3d 877, 884.
Petitioner shall submit a judgment of dismissal for the Court's
signature.
***
ITEM 17 02CS01520 PEOPLE OF THE STATE OF CA VS. U.S. CURRENCY $975.00 (JACKSON
Nature of Proceeding: Motion To Compel
Filed By: LEONARD, STEPHANIE
Dropped.
***
ITEM 18 98AS06196 CHRISTINA POWELL VS. PHETDAVONG PHIAKHAMTA, ET AL
Nature of Proceeding: MOTION FOR DISCRETIONARY DISMISSAL
Filed By: SNOOK, TERRENCE T.
Continued to 03/28/2003
Department 54
January 28, 2003
Page 8
________________
***
ITEM 19 02AM04140 GOVERNMENT EMPLOYEES INSURANCE COMPANY VS. JAMES A. BAGSHAW
Nature of Proceeding: MOTION FOR ORDER REQUEST FOR ADMISSIONS DEEMED ADMITTED
Filed By: KORINKO, JEFFERY A.
Plaintiff's motion for order that request for admissions be deemed
admitted is unopposed and is granted unless proposed responses
substantially complying with CCP section 2033(f)(1) are served prior to
hearing. CCP section 2033(k). The truth of the matters asserted in the
request for admissions served on defendant James A. Bagshaw is hereby
deemed admitted.
Plaintiff is awarded mandatory sanctions in the amount of $325.30
against defendant James A. Bagshaw.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
***
ITEM 20 02AM10120 KEY BANK, USA VS. CASIE TATE, ET AL
Nature of Proceeding: Writ of Possession Hearing
Filed By: WINN, BRIAN N.
Continued to 03/03/2003
***
