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
R. Rouse, Clerk
V. Carroll, Bailiff
October 27, 2003, 09:00
ITEM 1 00AS00994 DAVID ADAIR, ET AL VS. ARGENTA PM , ET AL
Nature of Proceeding: Motion For Summary Adjudicatio
Filed By: FOUTZ, ALAN W.
Continued to 11/07/2003
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ITEM 2 00AS06002 METEKU DINGLE VS. BRYAN KENNEY, ET AL
Nature of Proceeding: Motion To Withdraw Atty of Rec
Filed By: DINGLE, METEKU
Dropped.
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ITEM 3 00AS06002 METEKU DINGLE VS. BRYAN KENNEY, ET AL.
Nature of Proceeding: MT TO HOLD COUNSEL IN CONTEMPT
Filed By: DINGLE, METEKU
The Court, upon review of the papers submitted, finds there is no basis
to issue an O.S.C., therefore the request is denied.
Department 54
October 27, 2003
Page 2
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ITEM 4 01AS02436 CHRISTINE F. LATCHISON VS. DIANE C. PANONE
Nature of Proceeding: MOT FOR PAYMENT OF LATE DEPOSITION CANCELLATION FEE/SANCTNS
Filed By: HALLISSY, JOHN P.
Plaintiff scheduled three expert depositions for July 18, 2003.
Defendant notified plaintiff that two of the three depositions would not
go forward. Plaintiff then cancelled the third deposition also.
Defendant seeks to have plaintiff pay defendant's expert's cancellation
fee, citing C.C.P. 2025(j). That section only authorizes sanctions
when the party giving notice of the deposition fails to attend or
proceed and the other party or counsel attended. There is no evidence
that defendant or his counsel attended the deposition. The Court notes
that C.C.P. 2034(i)(2)(last paragraph) states that the party
designating the expert is responsible for any fee charged by the expert
for preparing for the deposition, which presumably includes cancellation
fees under this circumstance. The Court denies the motion to have
plaintiff pay the late cancellation fee, although this does not mean
that if defendant is the prevailing party she may not recover the fee as
an item of cost.
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 5 01AS06416 ANGELICA GARNER VS. MOHAMMED SHAREEF, ET AL
Nature of Proceeding: MOTION FOR ATTORNEY FEES AND COSTS
Filed By: BASSETT, ROBERT D.
The motion for costs, including attorney's fees pursuant to C.C.P.
2033(o) is unopposed and granted. Costs of $148.50 and attorney's fees
of $1,944.50 are awarded to Hertz Corporation from plaintiff Garner.
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
October 27, 2003
Page 3
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ITEM 6 02AS01166 SAVANAH D. WALLING VS. MAHSOU MOSHIRI, ET AL.
Nature of Proceeding: MOTION TO COMPEL
Filed By: JUCHAU, TODD A.
Calendared in error.
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ITEM 7 02AS02262 RANGER INSURANCE COMPANY VS. EDWARD DEREYES, ET AL
Nature of Proceeding: MOTION TO MODIFY JUDGMENT TO ALLOW COSTS
Filed By: DENNIS, STEPHEN F.
The motion is granted. A prevailing party is normally entitled to
costs. When a judgment is submitted to the Court after a ruling in its
favor, the prevailing party presents a judgment with the costs left
blank. The prevailing party then submits a cost memorandum and, if no
motion to tax/strike is filed, the Clerk enters the amount of costs onto
the blank space in the judgment. The Court apparently signed the
judgment and entered it in the file without inserting an amount for
costs. Plaintiff is awarded costs in the amount of $4,750 as stated in
the Memorandum of Costs. Although an appeal was filed, the Court has
jurisdiction to award costs.
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 8 02AS03608 LINDA BREKELMANS VS. PACIFIC GAS & ELECTRIC, ET AL
Nature of Proceeding: MOTION FOR PROTECTIVE ORDER
Filed By: DAVIS, JAMES MICHAEL
Defendant's motion for a protective order is denied. Defendant County
of Sacramento seeks a protective order that it need not produce
documents plaintiff requested Dennis Nakagawa produce at his deposition.
The County claims the request is burdensome because it is irrelevant.
The County has not substantiated its claims with legal argument, nor has
it adduced evidence that production of the documents would be
burdensome, other than to state it has responded to other discovery.
Plaintiffs' request for sanctions must be denied since it is not
supported by a declaration. C.C.P. 2025(i) and 2023(c).
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
October 27, 2003
Page 4
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ITEM 9 02AS04796 LARRY MENDOLLA, ETAL VS. WILLIAM A. SASSMAN, ETAL
Nature of Proceeding: Default Hearing
Filed By: CAPP, DAWN M.
Appearance Required.
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ITEM 10 02AS07510 CHANTAL MILLERY VS. MARGARET BELL, ET AL
Nature of Proceeding: Motion To Compel
Filed By: HOBSON, SUSAN E.
Defendant Bell's motions are granted, opposition has not been received
by the Court.
Plaintiff Millery is ordered to appear for her deposition on November 5,
2003, at 10:00 a.m. at 2500 Venture Oaks Way, Sacramento, California;
she is ordered to appear for an Independent Medical Examination on
November 11, 2003, at 10:00 a.m. before Dr. Donald Macko, at 6401 Coyle
Avenue, suite 410, Carmichael, California.
The admissions, set one, served on plaintiff are deemed admitted unless,
prior to the hearing, plaintiff serves proposed responses that comply
with Code of Civil Procedure Section 2033(f)(1). Code of Civil
Procedure Section 2033(k).
Mandatory monetary sanctions of $711.30 are awarded to defendant from
plaintiff. C.C.P. Sections 2025(j), 2033(k).
This minute order is effective immediately. No formal order is needed,
C.R.C. rule 391. Defendant to serve plaintiff with a copy of the
Court's ruling forthwith.
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Department 54
October 27, 2003
Page 5
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ITEM 11 02AS07834 CREDITWEST CORPORATION VS. CLIFFORD L. WHITE, JR., ET AL
Nature of Proceeding: MOTION FOR ORDER IMPOSING TERMINATING SANCTIONS
Filed By: MCLEAD, BRADY D.
Defendant White failed to respond to discovery, even after being ordered
to do so by the Court. The discovery was served on the Court clerk
since the address given to the Court and defendant by Mr. White was
incorrect, as mail served to Mr. White at that address has been
returned, unable to forward, by the Post Office. In addition, the phone
number given to the Court and defendant by Mr. White is disconnected.
Mr. White has not responded to this motion. From an objective
viewpoint, Mr. White has decided to not defend this lawsuit. Mr.
White's answer is stricken, along with his cross-complaint. Mr. White's
default is entered. Plaintiff may seek a default judgment in the usual
manner.
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 12 02CS01478 PEO VS. $1,781.000 IN U.S. CURRENCY (BARENTSON)
Nature of Proceeding: MOT FOR ORDER REQUEST FOR ADMISSIONS BE DEEMED ADMITTED/SNCT
Filed By: LEONARD, STEPHANIE
The People's motion is granted, opposition has not been received by the
Court.
The admissions served on Gwen Barentson are deemed admitted unless,
prior to the hearing, Ms. Barentson serves proposed responses that
comply with Code of Civil Procedure Section 2033(f)(1). Code of Civil
Procedure Section 2033(k).
A mandatory monetary sanction of $150 is awarded to the People from Ms.
Barentson.
This minute order is effective immediately. No formal order is needed,
C.R.C. rule 391. The People to serve Ms. Barentson with a copy of the
Court's ruling forthwith.
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Department 54
October 27, 2003
Page 6
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ITEM 13 02CS01478 PEOPLE OF THE STATE OF CA VS. $1,781.00 IN U.S. CURRENCY,
Nature of Proceeding: SUMMARY JUDGMENT
Filed By: LEONARD, STEPHANIE
With the admissions being deemed admitted, the motion for summary
judgment is granted as the admissions show there are no triable issues
of material fact and the People are entitled to judgment as a matter of
law.
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 03AS00050 ANGEL CARDENAS, VS. DANIEL MANUEL, ET AL.
Nature of Proceeding: MOTION TO COMPEL
Filed By: KRESTOFF, JASON A.
Plaintiff's motion is granted, opposition has not been received by the
Court.
Defendant Manuel is ordered to serve verified responses, without
objections, to plaintiff's Form Interrogatories, set one, no later than
Friday, November 7, 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, nor is further notice of this ruling required.
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Department 54
October 27, 2003
Page 7
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ITEM 15 03AS01600 JANE MACAULAY, ET AL VS. FIREHOUSE NO. 3 ASSOCIATES
Nature of Proceeding: Motion To Compel
Filed By: SIPES, MICHAEL K.
Plaintiff's motion is granted, opposition has not been received by the
Court.
Defendant Firehouse No. 3 Associates is ordered to serve verified
responses and further verified responses, without objections, to
plaintiff's Form Interrogatories, set one, ##7.1, 7.2, 7.3, 9.1, 12.4,
15.1, 50.1, 50.2, 50.3, 50.4 and 50.5; Special Interrogatories, set one,
##1-12; and Request for Production of Documents, set one, ##1-10, no
later than Friday, November 7, 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, nor is further notice of this ruling required.
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ITEM 16 03AS02088 TERRY SCHROEDER, ET AL VS. STRUCKMEYER RANCHES, INC.
Nature of Proceeding: Motion To Compel
Filed By: BALL, MATTHEW G.
Dropped.
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ITEM 17 03AS02932 BARRY ULDRICKSON, ET AL VS. EXPLORER INSURANCE CO., ET AL
Nature of Proceeding: Demurrer
Filed By: HAYES, STEPHEN M.
The demurrers to the second cause of action, breach of contract, are
overruled. Plaintiffs allege they lost their copy of the policy but
defendant maintains its copy. They also allege the terms of the policy
covered them for the loss incurred. Under the circumstances, that is
sufficient.
The demurrers to the third cause of action, breach of oral contract, are
overruled. Plaintiffs sufficiently allege formation of oral contracts.
The demurrers to the fourth cause of action, negligence, are sustained
without leave to amend, pursuant to plaintiffs' concession.
The demurrers to the fifth cause of action, intentional
misrepresentation; sixth cause of action, negligent misrepresentation;
and seventh cause of action, fraud, are overruled. [Note: the amended
complaint incorrectly numbered these and the following causes of action]
The causes of action are sufficient and specifically plead. Defendant's
argument that plaintiffs' allegations that when defendants made the
misrepresentations they knew them to be false and were made with the
intent to deceive and defraud plaintiffs and to induce plaintiffs to act
on them are boilerplate is specious. Ultimate facts are sufficient,
evidentiary facts are not required.
The demurrers to the eighth cause of action, trespass to chattels; and
the ninth cause of action, conversion, are overruled. The facts
sufficiently allege wrongful exercise of dominion over property of
another and intentional interference with the possession of personal
property which proximately causes injury.
The demurrers to the tenth cause of action, intentional infliction of
emotional distress, are sustained with leave to amend. Outrageous
conduct has not been alleged.
The demurrers to the eleventh cause of action, negligent infliction of
emotional distress, are sustained without leave to amend. Under the
facts alleged, this cause of action is merely another way of pleading
negligence. Plaintiffs conceded they cannot state a cause of action for
negligence. See ruling regarding the fourth cause of action.
The demurrers to the twelfth cause of action, punitive damages for
tortuous breach of insurance contract, is sustained without leave to
amend based on plaintiffs' concession.
Plaintiffs to file and serve a second amended complaint no later than
Friday, November 7, 2003.
Defendants to respond no later than Wednesday, November 19, 2003.
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
October 27, 2003
Page 8
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ITEM 18 03AS03188 RICHARD WIGINGTON, ET AL VS. OLD KENT MORTGAGE, ET AL
Nature of Proceeding: Demurrer
Filed By: WRIGHT, ROBIN PREMA
The demurrer to the second cause of action, breach of fiduciary duty, is
sustained with leave to amend. Plaintiffs have failed to allege facts
showing either a fiduciary relationship or a special relationship with
defendants.
The demurrer to the third cause of action, breach of the implied
covenant of good faith and fair dealing, is deemed a motion to strike
the request for punitive damages and is granted without leave to amend.
The demurrer to the fourth cause of action, negligence, is sustained
with leave to amend. Plaintiffs have not alleged sufficient facts to
show a violation of a duty independent of the contract. Erlich v
Menezes (1999) 21 C.4th 543.
The demurrer to the fifth cause of action, intentional infliction of
emotional distress; and sixth cause of action, negligent infliction of
emotional distress, is sustained without leave to amend. Outrageous
conduct is not alleged.
The demurrer to the seventh cause of action, defamation, is sustained
with leave to amend. Although plaintiffs are not required to plead
around the qualified privilege, where such does not appear on the face
of the pleading, the Court agrees that the allegations fit within Civil
Code 1785.32 and Plaintiffs have not alleged malice.
The motion to strike is granted, with leave to amend where the demurrer
to the corresponding cause of action is sustained with leave to amend;
and without leave to amend where the demurrer to the corresponding cause
of action is sustained without leave to amend.
Plaintiffs to file and serve a first amended complaint no later than
Friday, November 7, 2003.
Defendant to respond no later than Wednesday, November 19, 2003.
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
October 27, 2003
Page 9
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ITEM 19 03AS03188 RICHARD WIGINGTON, ET AL. VS. OLD KENT MORTGAGE, ET AL.
Nature of Proceeding: MOTION TO STRIKE
Filed By: WRIGHT, ROBIN PREMA
See ruling in item #19.
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ITEM 20 03AS03394 JEFF SCHWAMMEL, VS. CALIFORIA: DEPT OF BOATING AND WATERWAYS
Nature of Proceeding: DEMURRER/MOTION TO STRIKE
Filed By: POLLI, KARIN L.
Dropped.
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ITEM 21 03CS00024 IN RE: $735.00 U.S. DOLLARS (ANESA DIANGELO)
Nature of Proceeding: MOT FOR REQUEST FOR ADMISSIONS BE DEEMED ADMITTED/SANCTIONS
Filed By: LEONARD, STEPHANIE
The People's motion is granted, opposition has not been received by the
Court.
The admissions served on Anesa DiAngelo are deemed admitted unless,
prior to the hearing, Ms. DiAngelo serves proposed responses that comply
with Code of Civil Procedure Section 2033(f)(1). Code of Civil
Procedure Section 2033(k).
A mandatory monetary sanction of $150 is awarded to the People from Ms.
DiAngelo.
This minute order is effective immediately. No formal order is needed,
C.R.C. rule 391. The People to serve Ms. DiAngelo with a copy of the
Court's ruling forthwith.
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Department 54
October 27, 2003
Page 10
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ITEM 22 03CS00024 PEOPLE OF THE STATE OF CA VS. $735.00 IN U.S. CURRENCY,
Nature of Proceeding: SUMMARY JUDGMENT
Filed By: LEONARD, STEPHANIE
With the admissions being deemed admitted, the motion for summary
judgment is granted as the admissions show there are no triable issues
of material fact and the People are entitled to judgment as a matter of
law.
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 23 03CS01141 NHIA HER YANG VS. UNITRIN PROPERTY & CASUALTY INSURANCE CO.
Nature of Proceeding: Petition To Compel Arbitration
Filed By: SULLIVAN, HAROLD V.
Petition to Compel Uninsured Motorist Arbitration is denied. The
petition does not comply with Insurance Code section 11580.2(f), which
requires a declaration regarding whether a workers compensation claim
was filed. Moreover, respondent opposes the motion because petitioner
did not comply with section 11580.2(i)(1)(A), (B), or (C). Petitioner
has not filed any reply challenging the argument that her claim is
barred.
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ITEM 24 03CS01309 IN RE: BOARD OF ADMINISTRATION OF THE PERS OF THE STATE OF C
Nature of Proceeding: PET FOR INSTR FOR CONST OF TRUST,ACCT,REDRESS OF BREACH,AFC
Filed By: WYATT, RALPH WM.
Dropped.
Department 54
October 27, 2003
Page 11
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ITEM 25 03CS01338 IN RE: HUNG CONG TA
Nature of Proceeding: Petition For Change Of Name
Filed By: TA, HUNG CONG
The Petition for Change of Name is granted.
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ITEM 26 02AM03174 DIRECT MERCHANTS CREDIT CARD BANK VS. ANGELITA O. VILLANUEVA
Nature of Proceeding: CLAIM OF EXEMPTION
Filed By: LOUIE, CHRISSIE
The Sheriff is not holding any of judgment debtor's funds at this time.
Judgment debtor claims she is not working. If she is not working, there
is no need for an exemption from garnishment of her wages. The claim of
exemption is therefore dropped.
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