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
B. Rouse, Clerk
Vivian Carroll, Bailiff
March 12, 2003, 09:00
ITEM 1 02AS00010 ARTHUR ROBERTSON VS. REINALDO MONTIEL
Nature of Proceeding: Default Hearing
Filed By: i
This matter is continued on the Court's own motion to March 26,
2003. If that date is not convenient, plaintiff may obtain another date
later than March 26 by calling the Clerk of Dept. 54.
***
ITEM 2 02AS02674 ANTHONY MICHAEL ALMEIDA JR VS. CATHOLIC HEALTHCARE W ET AL
Nature of Proceeding: Motion To Withdraw Atty of Rec
Filed By: RANCANO, DAVID C.
The motion is unopposed and is granted. The Court will sign the
formal order submitted with the moving papers.
***
ITEM 3 02AS02956 TRI STATE BORING, INC. VS. CALVIN RAY YETTER
Nature of Proceeding: MOTION TO COMPEL RESP PROD OF DOC
Filed By: ROSCOE, WILLIAM P. III
Plaintiff's motion to compel responses to request for production of
documents is unopposed and is granted. Defendant shall serve verified
responses, without objection, no later than March 24, 2003.
Insofar as the motion seeks production of documents, it is denied as
premature, as CCP section 2031(n) authorizes a motion to compel
compliance after a response is filed and inspection in compliance with
the response is not permitted.
Sanctions are denied as the motion is unopposed.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
Department 54
March 12, 2003
Page 2
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ITEM 4 02AS02956 TRI STATE BORING, INC., VS. CALVIN RAY YETTER, ET AL.
Nature of Proceeding: MT TO COMP RESP SPEC INTERROG
Filed By: ROSCOE, WILLIAM P. III
Plaintiff's motion to compel responses to special interrogatories
(set one) and form interrogatories (set one) is unopposed and is
granted. Defendant shall serve verified responses, without objection,
no later than March 24, 2003.
Sanctions are denied as the motion is unopposed.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
***
ITEM 5 02AS05438 DOUGLAS SCALZI, ETAL VS. NEWMAR CORPORATION, ETAL
Nature of Proceeding: Motion To Quash Service Summon
Filed By: DONOHUE, KAN TUNG
Plaintiff's motion to quash subpoenae propounded by defendant Newmar
Corporation to SAC Commercial Properties is granted. The records sought
by the subpoenae are not relevant to the subject matter of the action,
and are protected by plaintiffs' constitutional right of privacy.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
***
ITEM 6 02AS06388 REGINA SCHOWENGERDT VS. AIRCO MECHANICAL, INC., ET AL
Nature of Proceeding: Motion To File Amended Complai
Filed By: LEONARD, SHERI L.
Plaintiff's motion for leave to file amended complaint is deemed to
be a motion for leave to file supplemental complaint and as such is
granted. The supplemental complaint, containing only the new causes of
action, shall be filed and served no later than March 24, 2003. The
Clerk will not separately file the proposed amended complaint submitted
with the moving papers.
Any defects in the pleading may be addressed by appropriate motion.
(The Court notes that a right-to-sue letter is required only as to
causes of action based on violation of FEHA rights; the proposed new
causes of action are common law torts for which a right-to-sue letter is
not required).
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
Department 54
March 12, 2003
Page 3
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ITEM 7 02CS00466 LORRAINE WILLIAMS VS. ALL PROFESSIONAL REALTY, INC., ET AL
Nature of Proceeding: Petition To Confirm Arb Award
Filed By: KOENIGSBERG, MARC B.
The petition to confirm arbitration award is unopposed and is
granted as prayed. The Court will sign the formal order submitted with
the moving papers.
***
ITEM 8 03CS00108 IN RE: ERIN LEA REES
Nature of Proceeding: Petition For Change Of Name
Filed By: REES, ERIN LEA
The petition is unopposed and is granted.
***
ITEM 9 03CS00264 DONALD J. KENNEDY VS. DEPARTMENT OF MOTOR VEHICLE
Nature of Proceeding: PET FOR TEMPORARY RESTRAINING ORDER
Filed By: KENNEDY, DONALD J.
The TRO is limited by its terms to 30 days and will expire on March
21, 2003, and no preliminary injunction will be granted.
***
ITEM 10 01AM07376 BRANDY LUCERO, ET AL VS. JOHN LEONARD KOON
Nature of Proceeding: Motion To Reclassify Limited C
Filed By: ANTOINE, RICHARD F.
As the motion is not opposed, the motion is granted.
***
Department 54
March 12, 2003
Page 4
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ITEM 11 02AM00868 JORGE SOLORIO, ET AL VS, MANG THI TONG
Nature of Proceeding: MOTION TO VACATE AND SET ASIDE DEFAULT AND DEFAULT JUDGMENT
Filed By: NOTT, ROSS R.
Defendant's motion to set aside default and default judgment is
granted. In her declaration, defendant states that she does not recall
receiving the summons and complaint, and that since she does not read
English, she would have given any such papers to her insurance carrier.
Her insurance carrier has submitted declarations stating that they were
monitoring the situation and did not receive a summons and complaint.
Memoranda submitted by defendant's insurance carrier shows that they
were notified of the incident within two weeks. A memo dated March 12,
2002, indicates that the carrier was informed a complaint had been filed
and that a copy would be faxed to the carrier. Other memoranda detail
the carrier's attempts to reach plaintiffs' attorney to ascertain the
status of the litigation prior to the entry of default. Inexplicably,
counsel did not return the carrier's telephone calls. It appears to the
Court that the carrier made reasonable attempts to represent defendant
in this litigation, and would have been ready to refer the matter to an
attorney upon notice that the complaint had been served.
Drawing all inferences in favor of defendant (Pearson v. Continental
Airlines (1970) 11 Cal.App.3d 613, 618), the Court concludes from the
above evidence that plaintiff was never served with the summons and
complaint, making the default void ab initio.
Even if the Court were to infer that defendant was, in fact, served,
the above evidence supports the conclusion that plaintiff did not
receive actual notice of the lawsuit in sufficient time to defend. CCP
section 473.5. The Court finds this case very similar to Goya v.
P.E.R.U. Enterprises (1978) 87 Cal.App.3d 886, 892, in which defendants,
whose proficiency in English was very limited, were served with the
summons and complaint but did not understand the nature of the
documents.
Plaintiffs contend that defendant must have received the summons and
complaint and must have known the nature of their contents because she
was able to speak in English to the officer who prepared the accident
report, and because she spoke in English when she was telephoned by
plaintiffs' counsel months after taking her default. Counsel does not
explain the purpose of the telephone call or why he called defendant
directly instead of contacting her known insurance carrier, which had
been trying to contact him. In any event, the ability to speak English
is not the equivalent of the ability to read and understand documents
written in English, and there is no further evidence from the process
server indicating what attempts, if any, were made to explain the nature
of the papers allegedly served.
The doctrine of extrinsic mistake would also apply to these
circumstances. See, e.g. Rappleyea v. Campbell (1994) 8 Cal.4th 975,
981. Through mistake on the part of plaintiff's counsel in failing to
return the carrier's telephone inquiries about the status of the matter,
or defendant's mistake in not understanding the nature of the documents
served on her, the carrier did not, despite its reasonable efforts,
receive timely notice that the summons and complaint had been served.
The Court is troubled by counsel's apparent failure to fulfill what
is at least an ethical, if not legal, obligation to inform the carrier
about service, and finds the following observation apt: "[E]ven
legitimate tactics must sometimes yield to the only goal that justifies
the very existence of our judicial system, i.e. the resolution of our
citizens' disputes and the administration of justice." Brown v. Presley
of So. California (1989) 213 Cal.App.3d 612, 620.
The default and default judgment are hereby set aside and vacated.
Defendant shall file and serve her answer no later than March 24, 2003.
The Clerk will not separately file the proposed answer 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
March 12, 2003
Page 5
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ITEM 12 02AM03892 JULIE BAISDEN, ET AL VS. ARTURO F. LEPE, ET AL
Nature of Proceeding: Motion To Reclassify Limited C
Filed By: ANTOINE, RICHARD F.
It appears that plainitffs' counsel has a practice of "parking" cases as
limited jurtisdiction cases and later seeking reclassification to
unlimited cases. This case does not appear to have ever been one which
should have been filed as a limited case. This practice will be
tolerated for this time only, but if the court finds that counsel
persists, counsel ma find that he will have waived any recovery in
excess of $25,000.00 by his actions. Motion granted.
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