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
P. Allen, Clerk
Vivian Carroll, Bailiff
March 10, 2003, 09:00
ITEM 1 00AS06078 J. PAUL THOMPSON, ET AL VS. JIN CHON, ET AL
Nature of Proceeding: MOT DETERMINING GOOD FAITH SETTLEMENT
Filed By: LOGAN, RICHARD G.
Defendant Cendant Mobility Services Corporation's motion for
determination of good faith settlement is unopposed and is granted.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
***
ITEM 2 00AS06078 J. PAUL THOMPSON, ET AL. VS. JIN CHON, ET AL.
Nature of Proceeding: MT FOR DETM STLMT IS IN GD FTH
Filed By: SAMUELS, DEBRA L.
Defendants Jerry Landreth and William L. Lyon & Associates, Inc.'s
motion for determination of good faith settlement is unopposed and is
granted.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
***
ITEM 3 01AS01242 MARISELA HERNANDEZ VS. OSCAR G. VILLASENOR, ET AL
Nature of Proceeding: MOTION FOR OSC
Filed By: LANPHIER, STEELE
Dropped.
Department 54
March 10, 2003
Page 2
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ITEM 4 01AS02748 JOSEPHINE MARTHA STENERSEN, ET AL VS. MANOR CARE, INC. ET AL
Nature of Proceeding: Motion To File Amended Complai
Filed By: SEABRIDGE, WILLIAM B.
Plaintiffs' motion for leave to amend their complaint to allege a
claim for punitive damages pursuant to Code of Civil Procedure section
425.13 is granted. Plaintiffs' motion to conduct discovery pursuant to
Civil Code section 3295 is granted. Plaintiffs' motion to amend the
complaint to correct the names of the corporate defendants is unopposed
and is granted.
Plaintiffs' shall file and serve their amended complaint on or
before March 14, 2003.
This minute order is effective immediately. Pursuant to California
Rules of Court Rule 391(a), no formal order or further notice of this
ruling is required.
***
ITEM 5 01AS03882 BRANDON GOLLAHER VS. GREYHOUND LINES, INC.
Nature of Proceeding: Motion To Dismiss
Filed By: POSARD, MARK S.
Defendant's motion to dismiss is unopposed and is granted.
Plaintiff has not complied with the Court's order to serve discovery
responses, and the outstanding responses, if favorable to defendant,
would establish a complete defense.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
***
ITEM 6 01AS04266 JOSE RAMON MORENO VS. ROBERT CASTANEDA, ET AL
Nature of Proceeding: Default Hearing
Filed By: CAIN, STEPHEN A.
Appearance Required.
Department 54
March 10, 2003
Page 3
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ITEM 7 01AS04412 SCOTT POMETTA VS. KULDIP GILL
Nature of Proceeding: Motion To Withdraw Atty of Rec
Filed By: ROSENTHAL, S. DAVID
The motion to withdraw is unopposed and is granted. The Court will
sign the formal order submitted with the moving papers. The order will
be effective upon the filing of the proof of service of the signed order
upon the client.
***
ITEM 8 01AS06609 WESTWOOD GREYHAWK, LTD VS. US BANK NATIONAL ASSOC.
Nature of Proceeding: Summary Judgment
Filed By: HUNTER, S. CRAIG
Defendants' motion for summary judgment is granted.
Plaintiff obtained an acquisition loan from defendant U.S. Bank in 1999.
In 2000 and 2001 the parties negotiated a construction loan that
included payoff of the existing loan. On April 12 plaintiff's president
and CEO Westwood signed a letter agreeing to pay legal fees for
preparation of the loan documents. He later agreed to a loan extension
on the existing loan and incurred a fee of $4,833.00. After Westwood
received and reviewed the loan documents he found several terms that he
disliked. He was unable to convince defendant to make the changes he
desired. He then refused to sign the loan documents and sought and
obtained financing from Sacramento Commercial Bank
Plaintiff has now sued defendant for fraud and alleges the following:
(1) It would not have agreed to pay legal fees if it had known defendant
had already retained counsel, (2) Defendant said the loan documents
would be like those plaintiff had signed in the past and they were not.
Plaintiff contends if it had known these facts it would have sought
financing elsewhere and would not have incurred the legal fees or the
extension fee.
The parties argue whether the language in the April 12 letter means
outside counsel will be retained or has been retained. It is immaterial
whether or not defendant informed plaintiff that counsel had been
retained or had reviewed the loan documents in February. Plaintiff knew
outside counsel had been or would be would be retained and that it would
be required to pay the legal fees. (Deposition of Nagel, pages 39,
41-42.) The point is plaintiff agreed to pay legal fees. There was no
concealment of a material fact.
Westwood and Laukkanen knew U.S. Bank had merged with U.S. Bancorp and
certain policy changes would be made regarding document preparation.
They were told the bank would no longer use the computer generated form
documents (Laser Pro) for loans, forms with which they were familiar.
They knew the documents would be prepared by outside counsel. They knew
all these facts before April 12. Defendant did not tell them the
documents would be the same; similar perhaps, but not the same.
(Deposition of Westwood, pages 68-69, 74-76 deposition of Laukkenen,
pages 42-44, deposition of Nagel, page 49.) Now plaintiff contends it
would never had pursued a loan from defendant had it known the terms
would be different. It also contends that it would have sought
financing elsewhere and would have obtained it sooner, and therefore,
would not have incurred the extension fee. Defendant did not
misrepresent the terms of the agreement. Given these circumstances and
the fact that both Westwood and Laukkanen have had considerable
experience in negotiating construction financing, plaintiff's
expectation that the changes to the agreement would not be similar to
the ones plaintiff now objects to was not reasonable. There was no
misrepresentation and no reasonable reliance. Plaintiff had the
opportunity to review and reject the documents. And it did so.
Plaintiff has no damages. It agreed to pay attorney fees for document
preparation and the doucments were prepared. The loan extension fee was
necessary because without it the old loan would have come due. By paying
the extension fee plaintiff received an extension of time during which
it negotiated the terms of the new loan. The fact that the parties did
not come to an agreement does not mean plaintff has been damaged.
There is no actionable fraud here. This is merely a case where a loan
failed because the parties could not agree on the terms.
As the motion is granted it is not necessary to address the motion for
summary adjudication of the claim for punitive damages.
At the end of its points and authorities plaintiff suggests it should be
given a continuance for other depositions. Apparently, this relates to
ratification of Nagel's acts and plaintiff's claim for punitive damages.
There is no basis for a continuance.
Defendants' evidence objections on the ground of hearsay are sustained.
Other objections go more to weight than admissibility and are overruled
Defendant shall submit a formal order pursuant to CCP 437c(g)
Department 54
March 10, 2003
Page 4
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***
ITEM 9 01AS07014 MANWINDER KAUR VS. TERESA ANNE JOHNSON
Nature of Proceeding: Demurrer
Filed By: O'CONNOR, BRIAN J.
The demurrer of Anitra Mull to the First Amended Complaint of
Manwinder Kaur pursuant to Code of Civil Procedure section 430.10(e) is
overruled.
Ms. Mull first appeared in this action having been substituted into
the complaint as Doe 1 pursuant to Code of Civil Procedure section 474.
Although the First Amended Complaint does not indicate her substitution
in that respect, it is so deemed by the court. The First Amended
Complaint states a cause of action against Ms. Mull.
This minute order is effective immediately. Pursuant to California
Rules of Court Rule 391(a), no formal order or further notice of this
ruling is required.
***
ITEM 10 02AS00528 KOWANA M. STRONG, ET AL VS. THE STATE OF CALIFORNIA
Nature of Proceeding: Motion To Compel
Filed By: PHILLIPS, JAMES C.
Defendant's motion to compel responses to special interrogatories
(set two) is unopposed and is granted. Plaintiffs Kowana Strong and
Hattie Pearl Strong shall serve verified responses, without objection,
no later than March 20, 2003.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
***
ITEM 11 02AS02720 CESAR MENDOZA VS. CHASE MANHATTAN MORTGAGE, ET AL
Nature of Proceeding: MOT TO COMPEL DOCS/SANCTIONS
Filed By: SAACKE, WILLIAM C.
Defendants' motion to compel responses to request for production of
documents is granted. Although plaintiff has filed an opposition
indicating that he has produced the documents requested, it appears the
production was not accompanied by the responses required by CCP section
2031(g).
Plaintiff shall serve verified responses, without objection, no
later than March 20, 2003.
Defendant's request for monetary sanctions is denied.
Defendants' request for terminating sanctions is denied. Defendant
has not shown that favorable responses to the outstanding discovery
would establish a complete defense to this action. 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).
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
Department 54
March 10, 2003
Page 5
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***
ITEM 12 02AS02720 CESAR MENDOZA VS. CHASE MANHATTAN MORTGAGE, ET AL
Nature of Proceeding: MOT COMPEL RESPONSES/SANTIONS
Filed By: SAACKE, WILLIAM C.
Defendants' motion to deem requests for admissions admitted is
unopposed and is granted unless responses substantially complying with
CCP section 2033(f)(1) are served prior to hearing. The truth of the
matters asserted in the requests for admissions (set one) is hereby
deemed admitted.
Defendant is awarded mandatory sanctions pursuant to CCP section
2033(k) in the amount of $173 against plaintiff.
Defendant's request for terminating sanctions is denied.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
***
ITEM 13 02AS02720 CESAR MENDOZA VS. CHASE MANHATTAN MORTGAGE, ET AL
Nature of Proceeding: MOT COMPEL INTEROG/SANCTIONS
Filed By: SAACKE, WILLIAM C.
Defendants' motion to compel responses to form interrogatory no.
17.1 is unopposed and is granted unless the admissions are deemed
admitted in accordance with the ruling in item no. 12. Plaintiff shall
serve a verified response, without objection, no later than March 20,
2003.
Defendants' request for monetary sanctions is granted in the amount
of $173 against plaintiff.
Defendants' request for terminating sanctions is denied.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
***
ITEM 14 02AS03194 GAYE WELCH-BROWN VS. STATE CONTROLLER'S OFFICE, ET AL
Nature of Proceeding: Motion To File Amended Complai
Filed By: WELCH-BROWN, GAYE
Plaintiff's motion for leave to file amended complaint is, in
substance, a motion for reconsideration of the Court's prior ruling on
demurrer denying leave to amend. The motion is denied as plaintiff has
not complied with the requirements of CCP section 1008.
Plaintiff is cautioned that her actions have created a risk that she
might be declared a vexatious litigant within the meaning of CCP section
391(b)(3).
No oral argument will be permitted
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
Department 54
March 10, 2003
Page 6
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***
ITEM 15 02AS04104 WILLIAM O. WALLACE VS. JAMES H. WALLACE
Nature of Proceeding: Motion To File Amended Complai
Filed By: WALLACE, WILLIAM O.
The motion for leave to file amended complaint is unopposed and is
granted. The amended complaint shall be filed and served no later than
March 20, 2003.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 is required.
***
ITEM 16 02AS06638 NEHEMIAH CORP. OF CA VS. DON F. HARRIS, ET AL
Nature of Proceeding: Demurrer
Filed By: WITKOW, BRANDON J.
Cross-defendant Nehemiah Corp.'s demurrer to the third cause of
action for fraud in the amended cross-complaint is sustained with leave
to amend for failure to state a cause of action.
An amended complaint may be filed and served no later than March 20,
2003.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
***
ITEM 17 02AS06638 NEHEMIAH CORP. OF CA VS. DON F. HARRIS, ET AL
Nature of Proceeding: MOTION TO STRIKE
Filed By: WITKOW, BRANDON J.
The motion to strike is granted with leave to amend. The
allegations are not relevant to the cause of action for breach of
contract, and it does not appear from the face of the cross-complaint or
from the opposition to this motion how they are relevant to the cause of
action for fraud.
An amended complaint may be filed and served no later than March 20,
2003.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
Department 54
March 10, 2003
Page 7
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***
ITEM 18 02AS07030 HI-VOLTAGE WIRE WORKS, INC., ET AL VS. WALTER ZACHARIA, ETAL
Nature of Proceeding: MOTION TO QUASH
Filed By: HEINTZ, ROBERT A.
Defendants' motion to quash subpenas is granted as prayed. While
there may be some properly discoverable documents identified in the
subpenas, the overall number and breadth of documents requested is an
abuse of the discovery procedures. Therefore, the Court will not
attempt to rewrite the subpenas for plaintiff.
Defendants shall submit a formal order for the Court's signature.
***
ITEM 19 03CS00026 IN RE: ATHENA D. HALLOCK
Nature of Proceeding: Petition For Change Of Name
Filed By: HALLOCK, ATHENA D.
The petition is unopposed and is granted.
***
ITEM 20 03CS00098 IN RE: ROBERT CHARLES VANVEKOVEN
Nature of Proceeding: Petition For Change Of Name
Filed By: VANEKOVEN, ROBERT CHARLES
The petition is unopposed and is granted.
***
ITEM 21 03CS00102 IN RE: RACHAEL CRISTINE HOFFE, ET AL
Nature of Proceeding: Petition For Change Of Name
Filed By: MALONE, CHRISTOPHER J.
The petition is unopposed and is granted.
Department 54
March 10, 2003
Page 8
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***
ITEM 22 99AS03643 ANA MARIA ORTEGA VS. STATE OF CALIFORNIA, ET AL
Nature of Proceeding: SUMMARY JUDGMENT/ADJUDICATION
Filed By: LAUTERBACK, A. KAY
This case was transferred after Judge McMaster disqualified himself
pursuant to CCP 170.1(a)(6).
The court has independently reviewed the evidence and the file and
concludes the tentative ruling previously prepared by Judge McMaster,
with only minor exceptions, is an accurate statement of the law and
facts. The court adopts the ruling of Judge McMaster with the exception
of minimal changes regarding the issue of failure to exhaust judicial
remedies.
The motions for summary judgement/adjudication of the Department of
Mental Health, Department of Finance and the State Personnel Board are
granted for all the reasons stated in the moving papers. Plaintiff has
not filed separate statements in opposition and has not addressed any
arguments made by these defendants in her points and authorities,
apparently conceding she has no viable claims against them.
The motion by defendant Department of Health Services for summary
judgment is granted.
Plaintiff was terminated on September 24, 1996. She appealed to the
State Personnel Board and the appeal was dismissed on March 31, 1997.
She then filed a petition for writ of mandate on September 12, 1997.
Plaintiff filed her first FEHA compliant on December 29, 1997 and a
second essentially identical complaint on June 29, 1998. She received
her first right to sue letter on January 2, 1998 and the second letter
on July 2, 1998.
There are several procedural and substantive reasons for granting this
motion.
First, plaintiff has failed to exhaust her judicial remedies. Plaintiff
filed a petition for writ of mandate but has failed to prosecute it to
any conclusion, as she was required to do. (Johnson v City of Loma
Linda (2000) 24 Cal. 4th 61, 71-73.) The petition for writ of mandate
was filed September 12, 1997. She failed to pursue this remedy and it
is now subject to dismissal for failure to prosecute within five years.
Plaintiff was terminated on September 24, 1996. Neither of her FEHA
complaints was timely. Her failure to exhaust administrative remedies
bars this complaint.
Plaintiff argues the court has previously resolved the statute of
limitations issue in her favor. The fact that the court overruled
defendant's demurrer to the first amended complaint on the issue of the
statute of limitations does not preclude defendant from raising the
issue on summary judgment. The doctrine of "law of the case" is not
applicable here. That applies to prior decisions of an appellate court,
not the trial court. (Kowis v Howard (1992) 3 Cal.4th 888, 892-893.)
Plaintiff alleged her termination was final on June 27, 1997 and she
filed her FEHA complaints on December 29, 1997 and June 29, 1998. This
was sufficient to survive demurrer. The evidence submitted in support
of this motion shows that Plaintiff was terminated on September 24,
1996. That is the date the statute of limitations began to run.
Plaintiff contends that it does not run until the time of the State
Personnel Board's decision. An appeal to the Board does not toll the
one-year limitations period for filing a complaint with the DFEH.
Plaintiff has cited no authority that it does. A state employee may
choose to seek redress from either the Board or the DFEH. Having made a
choice and pursued it to conclusion, the employee has exhausted her
administrative remedies. (Ruiz v Department of Corrections (2000) 77
Cal.App. 4th 891, 896-897) It would be illogical to find that the
employee may appeal to the Board, toll the statute of limitations, and
then appeal to the DFEH.
This complaint is also barred by plaintiff's failure to file it within
one year of receiving her right to sue letter. She received this letter
in response to her first complaint of December 29, 1997 on January 2,
1998. This lawsuit was not filed until June 29, 1999. Plaintiff may not
restart the clock by filing a second, identical complaint with the DFEH.
Even if none of the procedural defects discussed existed, defendant has
shown it had a legitimate nondiscriminatory reason to terminate
plaintiff. Plaintiff had a long history of being disciplined for
dishonesty, incompetence, inefficiency, neglect of duties, and
discourtesy. (Exhibits 1, 14, and 16 to declaration of DeLaCruz.) She
was terminated for her treatment of a courier who attempted to serve her
at work with documents pertaining to one of her lawsuits in Sacramento
County Superior Court. (Manfred declaration.) Based on her conduct, she
was given notice of adverse action terminating her employment. (Sertich
declaration.) Plaintiff denies the incident occurred but she has no
evidence that this was pretext and no evidence of discrimination.
Plaintiff's objections to the declaration of Sertich on the grounds of
foundation and speculation are overruled. Her objections to the
declaration of Lauterback and attached exhibits are overruled.
Plaintiff's hearsay objections to the declarations of Manfred and Spath
and attached exhibits are overruled. Plaintiff's objections to exhibits
19 and 20 to the declaration of DeLaCruz are sustained as to the
contents of exhibit 19 and denied as to Exhibit 20.The court has not
considered the declaration of Chambliss
Defendant's objections to plaintiff's declaration go more to weight than
admissibility and are overruled.
Defendant's request for judicial notice.
Defendants shall submit a formal order pursuant to CCP 437c(g) and CRC
Rule 391
Department 54
March 10, 2003
Page 9
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ITEM 23 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.
Dropped.
***
ITEM 24 02AM05860 JAYSHREE N. SHARMA, ET AL VS. MOHAMED NASSER ABOUI, ET AL
Nature of Proceeding: Default Hearing
Filed By:
Appearance will be allowed. The Court has been unable to locate the
file in this matter. If plaintiff cannot bring copies of all relevant
documents to the hearing, including proof of service of a statement of
damages if required by CCP section 425.11, the matter will be dropped
without prejudice to a renewed request for a prove-up hearing at a later
date.
***
ITEM 25 02AM10270 TRIAD FINANCIAL CORP., VS. FLORING G. CIRSTEA
Nature of Proceeding: DEMURRER
Filed By: CIRSTEA, FLORIN G.
Defendant has filed a document entitled "Answer, Special Demurrer
and Cross-Complaint." To the extent that the document may be considered
to be a special demurrer, it is overruled. Otherwise, the document is
deemed to be a timely-filed answer.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
***
