&l2A NOTICE: To request limited oral argument on any matter on this calendar, you must call the Court at (916) 874-7858 (Department 53) by 4:00 p.m. the day before this hearing and advise opposing counsel. Local rule 31(h). If no call is made the tentative ruling becomes the order of the court. JUDGE MCMASTER DISCLOSES THAT ATTORNEYS APPEARING IN CASES ON TODAYS CALENDAR MAY HAVE DONATED TO THE COMMITTEE FOR JUDICIAL INDEPENDENCE WHICH WAS FORMED TO OPPOSE THE ATTEMPTED RECALL OF JUDGE MCMASTER. A LIST OF DONORS AND AMOUNTS DONATED IS UNDER THE CUSTODY OF COURT EXECUTIVE OFFICER JODY PATEL AND CAN BE REVIEWED AT ROOM 611, SIXTH FLOOR, COURTHOUSE, 720 NINTH STREET. TENTATIVE RULINGS Department 53 Superior Court of California 800 Ninth Street, 3rd Floor LOREN E. MCMASTER, Judge T. WEST, Clerk V. CARROLL, Bailiff April 1, 2005, 02:00 ITEM 1 02AS04104 WILLIAM O. WALLACE VS. JAMES H. WALLACE, ET AL Nature of Proceeding: Motion For Judgment On Pleadin Filed By: HODGSON, TIMOTHY E. Defendants' motion for judgment on the pleadings is granted with leave to amend as to the first and fourth causes of action for fraud and without leave to amend as to the sixth cause of action for forgery. The remaining causes of action were disposed of by summary adjudication. There is no civil action for forgery. However, it is possible that forgery allegations may be appropriate within the context of a cause of action for fraud. Whether that is approrpiate here is not an issue before the court at this time. The first cause of action is directed at defendant James. The misrepresentations alleged by plaintiff appear to relate to how the parties would care for their mother. Plaintiff alleges he made improvements to the real property based on misrepresentations by James. He and James held the real property as joint tenants with their mother. In 1987 plaintff deeded his interest to James and their mother. He alleges he made improvements to the property in 1994 based on representations by James and that his damages are $80,000 for the property and improvements. Plaintiff has not stated facts sufficient to support a cause of action for fraud. He must allege with specificity the exact misrepresentations (the allegations in paragraph four are not sufficient) and allege more clearly his reliance. He must also clarify the nature of the damages he seeks. He appears to be claiming an interest in the real property; but he deeded that interest in 1987. Does he seek to recover the value of his labor and out of pocket expenses? Is he also seeking reimbursment for the costs of caring for their mother? Plaintiff fails to state a cause of action against defendant Dina. He alleges she was a party to a fraudulent transfer of the property. This is not sufficient. Plaintiff may file and serve an amended complaint by April 11, 2005. Responsive pleadings shall be filed 10 days thereafter, 15 days if service is by mail. If defendants choose to demur to the amended complaint, the court requests that they attach a copy of the amended complaint although they are not required to do so. This minute order is effective immediately. No formal order is required, the tentative ruling being sufficient notice. Department 53 April 1, 2005 Page 2 ______________ *** ITEM 2 03AS04639 PATRICIA ADDELINE LEE VS. MIKE SARANTIS, ETAL Nature of Proceeding: Motion To Compel Filed By: SAMUEL, PETER F. Plaintiff's motion to compel responses to discovery is unopposed and granted. Compliance without objections shall be by April 11, 2005. Sanctions are denied as the motion was not opposed. Although CRC 341 purports to authorize sanctions if the motion is unopposed, the Court declines to do so. The specific statutes governing this discovery, CCP 2030(k) and 2031(l), authorize sanctions only if the motion is unsuccessfully made or opposed. Any order imposing sanctions under the CRC must conform to the conditions of one or more of the statutes authorizing sanctions. Trans-Action Commercial Investors, Ltd. V. Firmater, Inc. (1997) 60 Cal.App.4th 352, 355. This minute order is effective immediately. No formal order is required, the tentative ruling being sufficient notice. *** ITEM 3 04AS01831 PACIFIC BELL DIRECTORY VS. PARISSA YAGHMAIE, ET AL Nature of Proceeding: Motion To Compel Filed By: PHINNEY, TOM Defendants' motion to compel is denied. Defendants stipulated that plaintiff could respond to defendants' discovery requests 30 days after defendants served their discovery responses. Plaintiff's responses are not yet due. However, plaintiff has agreed to provide all outstanding discovery by April 1, 2005. Defendants' request to take depositions after the statutory cut-off is denied. Trial is set for April 15, 2005. Defendants' reason for the delay in noticing the depositions is that they wished to have plaintiff's documents and discovery responses first. This is an inadequate reason, particularly in light of the fact that defendants created this problem by their stipulation. The request for mandatory settlement conference must be addressed by Department 14. This minute order is effective immediately. No formal order is required, the tentative ruling being sufficient notice. Department 53 April 1, 2005 Page 3 ______________ *** ITEM 4 04AS02627 RENELLE K. EMOND VS. SERVICE CORP. INTERNATIONAL Nature of Proceeding: DEMURRER,MOTION TO STRIKE Filed By: GURNEE, STEVEN H. Defendants' demurrer to the fourth, fifth, and sixth causes of action is sustained without leave to amend. Plaintiff was employed by SCI at its Mount Vernon and Sierra View locations from July 22, 2002 to June 17, 2004. She has alleged various Labor Code violations on the part of defendants and brings this action for herself and others similarly situated. There are two reasons for sustaining the demurrer to the fourth cause of action for declaratory relief. First, plaintiff cannot allege an existing controversy or potential future harm. She is no longer employed by defendants and there is no possibility of future harm. Coral Construction Inc. v City and County of San Francisco (2004) 116 Cal.App.4th 6, 17. The fact that other employees may suffer future harm does not give plaintiff standing to assert this cause of action. She must have standing in her own right. Second, the cause of action is merely duplicative of the first and second causes of action. Award Metals, Inc. v superior Court (1991) 228 Cal.App.3d 1128, 1135. The fifth cause of action is for an accounting. This is an equitable remedy and typically involves a confidential or fiduciary relationship such as that between partners, not an employment relationship such as this one. Plaintiff contends she needs this cause of action because she does not know the amount of wages owed to her. This is information she will be able to obtain through discovery. In addition, this cause of action is, like the fourth cause of action, duplicative of the first and second causes of action. The sixth cause of action is for injunctive relief. This is a remedy not a cause of action. Plaintiff has requested that defendant be enjoined from violating the Labor Code in paragraph "g" of her prayer for relief. Defendants' motion to strike is granted and denied as set forth below. Paragraph 63, punitive damages, is stricken with leave to amend. The allegations of the eighth cause of action for disability discrimination are insufficient to support punitive damages. The motion to strike the first, third, and eighth causes of action is denied. Defendants contend that plaintiff has pled mere legal conclusions and has not alleged which employer violated the statutes. Uncertainty or failure to allege a sufficient factual basis for a claim should be addressed by demurrer not a motion to strike. In any event, plaintiff has alleged each defendant violated the Labor Code sections related to compensation for meals periods, compensation for rest periods, and payment for overtime. In paragraph 37 the language "through the date of trial" is stricken. Plaintiff cannot incur damages through the date of trial as she ceased employment with defendants in June 2004. If the class is certified, plaintiff may seek to amend the complaint to assert damages on behalf of class members who are still employed. The motion to strike the language "relevant time period" where it appears throughout paragraph 20 is denied. If this creates confusion, then defendants should have demurred specially. In any event plaintiff has alleged in paragraph one that the complaint is for labor code violations occurring from June 30, 2000 through the trial date. The court cannot reverse its prior ruling on the retroactivity of Proposition 64. This must be addressed by a motion for reconsideration and must be heard by Judge McMaster. Plaintiff may file and serve an amended complaint, amending only the eighth cause of action to alleged facts to support punitive damages by April 11, 2005. Responsive pleadings shall be filed 10 days thereafter, 15 days if service is by mail. This minute order is effective immediately. No formal order is required, the tentative ruling being sufficient notice. Department 53 April 1, 2005 Page 4 ______________ *** ITEM 5 04AS03166 KEVAN HARRY GILMAN, ET AL VS. LENA L. DALBY, ET AL Nature of Proceeding: MOTION FOR SUMM JUDG/SUMM ADJ Filed By: CAMPORA, STEVEN M. The motion for summary judgment of defendants Dalby, Dreyer, Babich, Buccola, Callaham, and Dreyer Babich LLP is granted. Defendant DaPrato signed a contract for medical services from plaintiff giving plaintiff a lien on any recovery he might receive. DaPrato subsequently retained the moving defendants as his attorneys. None of the attorney defendants signed the medical lien. DaPrato's case was settled in June 2003 for $6,500. Total litigation costs were $6,882.47. Moving defendants received no attorneys' fees and no funds were disbursed to DaPrato. Plaintiff has not opposed the causes of action for breach of contract, account stated, open book, or accounting. As for the cause of action for conversion, there are no disputed material facts and defendants are entitled to summary judgment. There can be no conversion because the essential element of an ownership interest or right to possession is missing. "A lien is a charge imposed in some mode other than by a transfer in trust upon specific property by which it is made security for the performance of an act." Civil Code Section 2872. Plaintiff had a security interest in the settlement proceeds, not an ownership interest or a right to possession. Furthermore, there were no funds to be converted. Defendants shall submit a formal order pursuant to CCP 437c(g) and CRC Rule 391. *** ITEM 6 04AS03783 JOSEPH SMITH, ET AL. VS. ANDREY ANDREYEVIC ROMANYUK, ET AL. Nature of Proceeding: Demurrer Filed By: DEBERNARD, GREGORY V. Dropped. The complaint was dismissed as to demurring defendant on March 16, 2005. Department 53 April 1, 2005 Page 5 ______________ *** ITEM 7 04AS04083 E*TRADE CONSUMER FNANC. CORP., ET AL VS. DONNA L. GOULD,ETAL Nature of Proceeding: MOTION TO COMPEL DOCS Filed By: HENDRY, JOHN A. Plaintiff's motion to compel production of documents is unopposed, treated as a motion to compel responses to request for production, and granted. Compliance without objections shall be by April 11, 2005. Sanctions are denied as the motion was not opposed. Although CRC 341 purports to authorize sanctions if the motion is unopposed, the Court declines to do so. The specific statute governing this discovery, CCP 2031(l), authorizes sanctions only if the motion is unsuccessfully made or opposed. Any order imposing sanctions under the CRC must conform to the conditions of one or more of the statutes authorizing sanctions. Trans-Action Commercial Investors, Ltd. V. Firmater, Inc. (1997) 60 Cal.App.4th 352, 355. This minute order is effective immediately. No formal order is required, the tentative ruling being sufficient notice. *** ITEM 8 04AS04083 E*TRADE CONSUMER FNANC. CORP., ET AL VS. DONNA L. GOULD,ETAL Nature of Proceeding: MOTION TO COMPEL INTEROG Filed By: HENDRY, JOHN A. Plaintiff's motion to compel answers to interrogatories unopposed and granted. Compliance without objections shall be by April 11, 2005. Sanctions are denied as the motion was not opposed. Although CRC 341 purports to authorize sanctions if the motion is unopposed, the Court declines to do so. The specific statute governing this discovery, CCP 2030(k), authorizes sanctions only if the motion is unsuccessfully made or opposed. Any order imposing sanctions under the CRC must conform to the conditions of one or more of the statutes authorizing sanctions. Trans-Action Commercial Investors, Ltd.V. Firmater, Inc. (1997) 60 Cal.App.4th 352, 355. This minute order is effective immediately. No formal order is requried, the tentative ruling being sufficient notice, Department 53 April 1, 2005 Page 6 ______________ *** ITEM 9 04AS04083 E*TRADE CONSUMER FNANC. CORP., ET AL VS. DONNA L. GOULD,ETAL Nature of Proceeding: MOT FACTS DEEMED ADMITTED Filed By: HENDRY, JOHN A. Plaintiff's motion for an order that certain matters be deemed admitted is unopposed and granted. The matters are deemed admitted unless defendants provide response in substantial compliance with CCP 2033(f)(1) before the time of the hearing. If defendants serve responses, plaintiff shall inform the court. Mandatory sanctions are ordered in the amount of $736.30. The sanctions shall be paid by May 1, 2005. This minute order is effective immediately. No formal order is required, the tentative ruling bering sufficient notice. *** ITEM 10 04AS04569 SABRINA ROBBSON, ET AL VS. DELTA DENTAL OF CA, ET AL Nature of Proceeding: Motion To Compel Filed By: WILLIAMS, CHARLES G. Dropped. *** ITEM 11 05CS00135 NO CAL COLL SERV. INC. VS. JEFFREY S. STUARD Nature of Proceeding: Petition To Confirm Arb Award Filed By: CRIBB, STEVEN D. Dropped. There is no proof of service in the court's file. Service must be pursuant to CCP 1290.4. *** Department 53 April 1, 2005 Page 7 ______________ ITEM 12 05CS00187 IN RE: SUSAN LOPEZ MELE Nature of Proceeding: Petition For Change Of Name Filed By: MELE, SUSAN Granted on condition proof of publication is filed in Department 53 before the time of the hearing. *** ITEM 13 04AM08085 INTERNATIONAL FIDELITY INS. CO. VS. ANTELOPE CORP. ET AL. Nature of Proceeding: Demurrer Filed By: BAXTER, DANIEL L. Defendants' demurrer to the third cause of action for declaratory relief is unopposed and sustained without leave to amend. Except for limited circumstances, not present here, declaratory relief is not available in a limited civil action. Defendants shall file and serve their answer to the remaining causes of action by April 11, 2005. *** ITEM 14 04ED38345 STATE OF CALIFORNIA, ET AL VS. LORI A. BAYLE Nature of Proceeding: CLAIM OF EXEMPTION Filed By: KURTTILA, J. The claim of exemption is denied. The court is without jurisdiction to grant an exemption where, as here, the debt is incurred for the "common necessaries of life." CCP section 706.051(c)(1); J.J. MacIntryre Co. v. Duren (1981) 118 Cal.App.3d Supp. 16. The judgment creditor, however, will accept less than the maximum allowable amount. The sheriff is ordered to withhold $92.00 per pay period. Any amounts retained in excess thereof are to be returned to the judgment debtor. *** ITEM 15 04ED49067 STATE OF CALIFORNIA, ET AL VS. KATIE A. HOWARD Nature of Proceeding: CLAIM OF EXEMPTION Filed By: KURTTILA, J. The claim of exemption is denied. The court is without jurisdiction to grant an exemption where, as here, the debt is incurred for the "common necessaries of life." CCP section 706.051(c)(1); J.J. MacIntryre Co. v. Duren (1981) 118 Cal.App.3d Supp. 16. The judgment creditor, however, will accept less than the maximum allowable amount. The sheriff is ordered to withhold $92.00 per pay period. Any amounts retained in excess thereof are to be returned to the judgment debtor. Department 53 April 1, 2005 Page 8 ______________ ***