&l2A 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 J. ZGRAGGEN, Clerk V. CARROLL, Bailiff April 1, 2005, 09:00 ITEM 1 02AS01083 KOFI OPONG-MENSAH VS. WARREN CURTIS STRACENER, ET AL Nature of Proceeding: Motion For Reconsideration Filed By: OPONG-MENSAH, KOFI Plaintiff moves for reconsideration of the Court's order dropping his motion to tax costs. The prior motion was dropped as no proof of service showing service of the motion on the opposing party was filed and served in compliance with C.R.C. rule 317(c). On reconsideration, the motion is not dropped but is heard on the merits. The motion to tax costs is denied. Plaintiff seeks to tax costs awarded to defendants by the Third District Court of Appeal. Plaintiff's legal and factual arguments however are denied; many of them are improper in the context of costs awarded on appeal; others are simply inapplicable. The Court finds that plaintiff has not met his burden of properly objecting to the costs sought by defendants. The motion to tax costs is denied. Oral argument is not allowed. This minute order is effective immediately. No formal order is needed, C.R.C. rule 391, nor is further notice of this ruling required. C.C.P.  1019.5. c Department 54 April 1, 2005 Page 2 ______________ *** ITEM 2 02AS06066 MARY SPOTT VS. UNITED RENTALS, ET AL Nature of Proceeding: Motion To Compel Filed By: WORKMAN, ROBIN G. Dropped. *** ITEM 3 02AS06866 HANDYMAN CONNECTION OF SAC, INC. VS. CLAUS GRAETER, ET AL Nature of Proceeding: Motion To Compel Filed By: MCGREEVY, RICHARD E. Plaintiff's motion is granted; opposition was not received by the Court. Defendant/cross-complainant Claus Graeter is ordered to serve verified answers and responses, without objections, to Plaintiff/cross-defendant's Special Interrogatories and Demand for Production of Documents, sets one, no later than Wednesday, April 6, 2005. 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. C.C.P.  1019.5. c Department 54 April 1, 2005 Page 3 ______________ *** ITEM 4 02AS07556 MICHAEL JACKSON D29136 VS. ERWARD S. ALAMEIDA Nature of Proceeding: MOTION FOR ORDER TO HAVE CLERK ISSUE COMPLAINT Filed By: JACKSON, MICHAEL The Court reviewed plaintiff's December 10, 2002 complaint. Plaintiff appears to name 11 defendants. Plaintiff states he received only one summons from the court clerk. The Court clerk is directed to issue 10 summons to the plaintiff so that plaintiff may serve the defendants named in his suit. This minute order is effective immediately. No formal order is needed, C.R.C. rule 391. The Clerk to serve plaintiff with a copy of the court's ruling. c *** ITEM 5 03AS04178 JOHN E. BAKOS VS. CENTRAL ANESTHESIA SERVICE EXCH MED GROUP Nature of Proceeding: Demurrer Filed By: LAMB, RONALD R. Defendant Sutter Roseville Medical Center's demurrer to the fifth amended complaint is sustained without leave to amend for failure to state facts sufficient to constitute a cause of action. See ruling in item number 5 (demurrer of defendants Central Anesthesia Service Exchange Medical Group, Maninder Atwal, Harpaul Mehrok and Anthony Kong). Defendants' counsel shall prepare an order sustaining their demurrer without leave to amend pursuant to CRC rule 391 and a judgment of dismissal for the court's signature. f Department 54 April 1, 2005 Page 4 ______________ *** ITEM 6 03AS04178 JOHN E. BAKOS, ET AL. VS. CENTRAL ANESTHESIA SERVICE EXCHGE Nature of Proceeding: DEMURRER Filed By: KELLEY, ROSEMARY Defendants Central Anesthesia Service Exchange Medical Group, Maninder Atwal, Harpaul Mehrok and Anthony Kong's demurrer to the fifth amended complaint is sustained without leave to amend for failure to state facts sufficient to constitute a cause of action. Plaintiff argues his complaint alleges three independent wrongful acts to support the cause of action for intentional interference with prospective economic advantage. None, however, are sufficient to sustain a cause of action. The allegations that defendants "steal" patients by doing unnecessary pre-operative examinations and by working on cases that have already been assigned to him are inadequately plead as tortuous or contractual wrongdoings. Further, plaintiff does not sufficiently allege a probable contractual relationship with any patient or physician. Similarly, plaintiff's allegation that he was excluded from the room rotation schedule is conclusory and devoid of facts. Finally, Rule 2d of the medical staff bylaws does not require a specific rotation schedule. It states that an anesthesiologist with full staff privileges must share the responsibility of assuring 24-hour coverage, seven days per week. On its face that provision means that each anesthesiologist must agree to provide his or her fair share of 24-hour coverage. It does not guarantee every anesthesiologist an equal number of patients. Plaintiff has had numerous opportunities to amend his complaint to state a cause of action. After at least five attempts, he has failed to do so. Leave to amend is therefore denied. Defendants' counsel shall prepare an order sustaining their demurrer without leave to amend pursuant to CRC rule 391 and a judgment of dismissal for the court's signature. f *** Department 54 April 1, 2005 Page 5 ______________ ITEM 7 03AS05082 RICHARD ARCHULETA, ET AL VS. MONACO COACH CORP., ET AL Nature of Proceeding: Motion To File Amended Complai Filed By: ROYE, KENNETH P. Plaintiff's motion to file a first amended complaint is unopposed and is granted. Plaintiff to serve his first amended complaint no later than Friday, April 8, 2004. The proposed first amended complaint is filed as of April 1, 2005. This minute order is effective immediately. No formal order is needed, C.R.C. rule 391, nor is further notice of this ruling required. C.C.P.  1019.5. c *** ITEM 8 03AS06600 JEFFREY JEE, ET AL VS. GLEN FALLS INSURANCE CO., ET AL Nature of Proceeding: Summary Judgment Filed By: WANG, JOYCE C. Defendants Glen Falls Insurance Company and Encompass Insurance seek summary judgment as to plaintiffs' First Amended Complaint based on their first affirmative defense of the statute of limitations. Defendants argue the plaintiffs' action is barred as it was not timely filed. The policy contains a provision stating that "[n]o action can be brought unless the policy provisions have been complied with and the action is started: (a) Within one year after the date of loss; but (b) Not until 30 days after the proof of loss has been filed and the amount of loss has been determined. The undisputed facts are that the plaintiffs reported to their insurers on December 18, 2001, that they had suffered damage to their property on December 1, 2001. Pursuant to the contractual statutute of limitations, plaintiffs had until December 1, 2002, to file suit, as December 1, 2001 is the date of loss. The contractual statute of limitations however was tolled from the time plaintiffs gave the insurers notice of the damage, December 18, 2001, until coverage was denied. It is undisputed the insurers investigated the loss and denied the claim on March 29, 2002. The claim was again denied on May 13, 2002. Regardless of whether the statute began running again on either March 29, 2002, or May 13, 2002, Plaintiffs filing of their lawsuit on December 1, 2003 was untimely. Declaration of Larson, including exhibits A, B and C; declaration of McLorg, including exhibits A, B and C; Defendants' request for Judicial Notice, which is granted. Prudential-LMI Com. Insurance v Superior Court. (1990) 51 C.3d 674. Defendants have met their burden of showing they are entitled to judgment. Plaintiffs argue their lawsuit was timely filed. They contend they could not sue defendants until a Proof of Loss form was completed by them, citing Prudential-LM, supra. In Prudential-LMI, the policy at issue required the insured to submit, within 60 days after the loss, a proof of loss; the insurer was then required to pay the amount of loss for which the company was liable 60 days after receipt of the proof of loss by the company. The policy at issue however only requires the insured to submit a proof of loss within sixty days of its being requested by the insurer. Plaintiffs evidence is not that the insurer ever requested a proof of loss but that the plaintiffs requested the proof of loss form on November 20, 2003. Declaration of Hall. Although the insurer denied the claim again on July 1, 2004, the statute had already run and could not be revived by the simple expedient of requesting a proof of loss form, submitting it, and then having it denied. Plaintiffs also argue defendants are estopped from asserting the statute of limitations defense because defendants continued negotiating with the plaintiffs after the limitations period ran. The evidence is that plaintiffs requested a proof of loss form on November 20, 2003, the insurer responded on December 4, 2003, the Proof of Loss was submitted on June 3, 2004 and was denied on July 1, 2004. All these actions occurred after the statute had run. Conduct by the insurer after the limitation period has run cannot, as a matter of law, amount to a waiver or estoppel. Prudential-LMI, supra, at 690, fn. 5. Plaintiffs argue there is a triable issue of material fact as to whether there were additional conversations with Ms. Larsson after June 12, 2002. According to Mr. Jee, he had several discussions with Ms. Larsson after June 12, 2002, including a conversation on October 10, 2002. Mr. Jee states Ms. Larsson explained that he could submit additional evidence to indicate coverage under the policy and that any letters received prior to July 1, 2004 were only provisional responses to his report of damages. Jee declaration. The evidence is presented to create a triable issue as to whether the letters of March 29, 2002 and May 13, 2002 indicated denial of coverage. Both letters state there is no coverage; in addition, both letters state that if there is any information that the insurer is unaware of that may change their position, ". please submit and your claim will be reconsidered." The letters themselves are not susceptible of being read as plaintiffs claim: that the insurer was not denying the claim pending receipt of further information. Regardless of whether they were characterized as "provisional responses" to plaintiffs' report of damage, the insurer indicated the claim was denied. The motion for summary judgment is granted. Department 54 April 1, 2005 Page 6 ______________ *** ITEM 9 04AS02652 SURUJ B. SINGH, ET AL VS. THONG VANG Nature of Proceeding: MOT FOR DETERMINATION OF GOOD FAITH SETTLEMENT Filed By: CHARTER, BRIAN H. Defendant Thong Vang's application for a determination that his settlement with plaintiffs whereby plaintiff voluntarily dismisses the action against him with prejudice and signs a standard release in exchange for a payment to plaintiffs of $15,000, with each side to bear their own attorney's fees and costs and plaintiffs being responsible for all liens, is in good faith is unopposed and granted. The Court finds the Tech-Bilt factors are met. This minute order is effective immediately. No formal order is needed, C.R.C. rule 391, nor is further notice of this ruling required. C.C.P.  1019.5. c *** ITEM 10 04AS02972 JOYCE SOZZI, ET AL VS. BC STOCKING DISTRIBUTING, ET AL Nature of Proceeding: MOTION TO STRIKE/MOTION TO COMPEL/MOTION FOR SANCTIONS Filed By: GUALCO, LORI J. The motion to strike and compel responses and further responses is: Granted as to the Request for Admissions and Production of Documents, sets one: the General Statement and Objections, paragraphs 5(b), 7, 8 and 9 are stricken; further responses must be served without inclusion of the General Statement and Objections noted above. Granted as to Request for Production ##1-5, 13, 14, 16-24; if privileges are claimed, defendants must provide a privilege log. The fact they did so after the motion was filed is irrelevant; plaintiff is still entitled to an order of the court. Granted as to Form Interrogatory 17.1 regarding RFA ##2, 3, 4, 5, 15, 19, 21, 23, 25, 27, 29, 31, 33, 35, 39, 41; further responses are required. Granted as to Form Interrogatory #15.0. Granted as to Form Interrogatory 17.1 regarding RFA #1, a response is required. The Court notes plaintiff's reply seeks a ruling regarding Form Interrogatory 50.1(b); since it is not in the separate statement, no ruling is made. The responses and further responses, plus a privilege log, must be served no later than Wednesday, April 13, 2005. Under the circumstances presented, the request for a monetary sanction is denied. This minute order is effective immediately. No formal order is needed, C.R.C. rule 391, nor is further notice of this ruling required. C.C.P.  1019.5. c Department 54 April 1, 2005 Page 7 ______________ *** ITEM 11 04AS03166 KEVAN HARRY GILMAN, ET AL VS. LENA L. DALBY, ET AL Nature of Proceeding: Summary Judgment Filed By: CAMPORA, STEVEN M. Case transferred to Department 53 *** ITEM 12 04AS03476 PHOENG LU, ET AL VS. TOYOTA MOTOR SALES USA, INC., ET AL Nature of Proceeding: Motion To Withdraw Atty of Rec Filed By: SAI-NGARM, SUKUM The motion to withdraw as counsel of record for Andrew Nguyen is granted. The order becomes effective on the date counsel files a proof of service in department 54 stating a copy of the signed order was served on the client. In addition, counsel must also serve all other parties who appeared in the case with a copy of the signed order. Since counsel did not give the client notice of the court's tentative ruling system, counsel must either appear in court on the morning of the hearing, or be on telephone standby, in case the client appears to contest the ruling. *** ITEM 13 04AS04620 KYANA SCOTT, ET AL. VS. CITY OF SACRAMENTO Nature of Proceeding: Demurrer Filed By: JACKSON, SANUEL L. Dropped. *** Department 54 April 1, 2005 Page 8 ______________ ITEM 14 04AS05002 JAMES J. CRABTREE, ET AL VS. JACOB L. BIAGI, ET AL Nature of Proceeding: Demurrer Filed By: WHITE, STEVEN A. Defendants Jacob L. Biagi and Hotshots' demurrer, which is unopposed, is ruled upon as follows. Defendants' demurrer to the third and fourth causes of action, interference with contractual relations and interference with prospective business advantage, is sustained without leave to amend for failure to state facts sufficient to constitute a cause of action. The complaint does not contain the material terms or include a copy of the alleged contract. Plaintiff does not adequately allege probable economic gain. Defendants' demurrer to the fifth cause of action, for equitable relief, is sustained without leave to amend for uncertainty. The court, and apparently defendants, cannot determine exactly the legal basis of this cause of action and the relief sought. Defendants' demurrer to the seventh, eighth, and ninth causes of action, slander, libel, and invasion of privacy, is sustained without leave to amend for failure to state facts sufficient to constitute a cause of action. The allegations are vague as to each cause of action. Plaintiff does not allege, for example, to whom defendants made any defamatory statement. Similarly, plaintiff does not describe any statement or act that placed him in a false light. Defendants' demurrer to the tenth cause of action, breach of contracts, is sustained without leave to amend for failure to state facts sufficient to constitute a cause of action. The complaint does not contain the material terms or include a copy of the alleged contract. The court cannot determine whether the contracts are written, oral or implied. Defendants' demurrer to the twelfth cause of action, fraud, is sustained without leave to amend for failure to state facts sufficient to constitute a cause of action. Plaintiff does not plead fraud with sufficient particularity. Defendants' demurrer to the thirteenth cause of action, intentional infliction of emotional distress, is sustained without leave to amend for failure to state facts sufficient to constitute a cause of action. Plaintiff has not plead facts demonstrating either outrageous conduct or sever emotional distress. Leave to amend not having been request, none is granted. The court having sustained defendants' demurrer without leave to amend, defendants' motion to strike portions of the complaint is dropped as moot. Defendants' counsel shall prepare an order pursuant to CRC rule 391 and a judgment of dismissal for the court's signature. f Department 54 April 1, 2005 Page 9 ______________ *** ITEM 15 04AS05138 DAVID POPKEN VS. WILLIAM GRAY Nature of Proceeding: MOTION TO EXPUNGE LIS PENDENS Filed By: KROGH, SHAWN M. Defendant's motion to expunge lis pendens is denied. Defendant's only contention is that the complaint does not allege a real property claim as required by CCP section 405.31. (In the introduction to the moving papers, defendant suggests that the written option agreement is ineffective, but no argument on that ground follows.) Though inartfully pled, the complaint does contain a real property claim. Paragraph 27, which requests an injunction to compel defendant to comply with the option contract, can reasonably be construed as a request for specific performance of the written option agreement. Plaintiff has also met his burden of producing evidence establishing the probable validity of that claim. That evidence shows that plaintiff and defendant entered into a written contract containing an option to purchase the property, and that plaintiff attempted to exercise the option. In reliance on the contract, plaintiff has made over $40,000 immprovements to the property, including re-stuccoing the building, laying concrete and construction of a frame-rack to hold damaged vehicles. Plaintiff has also shown that the location and character of the property have specific value due to the proximity to plaintiff's customers and access to local freeways. The minute order is effective immediately. No formal order pursuant to CRC Rule 391 or further notice is required. a *** ITEM 16 05CS00178 IN RE: BARBARA CHARLENE EMERY Nature of Proceeding: Petition For Change Of Name Filed By: ALLEN, RONALD L. The Petition for Change of Name is granted. *** Department 54 April 1, 2005 Page 10 ______________ ITEM 17 05CS00194 IN RE: RANDALL CHASE EHENREICH Nature of Proceeding: Petition For Change Of Name Filed By: GROSS, KRISTY A. Continued to 04/22/2005 *** ITEM 18 05CS00204 IN RE: JAMES GARIBALDI Nature of Proceeding: PT FOR APPR FOR TRANSFER OF STRUCTURED STLMT PAYMT RIGHTS Filed By: AHTIRSKI, EUGENE A. Appearance required. If there are no objections at the hearing, the Petition is approved. *** ITEM 19 02UD05163 WESTWOOD GOLD EXPRESS VS. CORVEL CORP. Nature of Proceeding: MOT FOR ORD DETERM PREV PARTY AND AWARD ATTY FEES AND COSTS Filed By: WARANOFF, NICHOLAS B. Westwood Gold Express filed an unlawful detainer action seeking possession of the premises. After the premises were vacated by defendant Corvel Corp., the action was converted into an action for rent. In response to the Third Amended Complaint, Corvel filed an answer alleging it had tendered to Westwood Gold Express the full amount of rent to which it was entitled and which it had sought in the Third Amended Complaint; that amount was thereafter deposited in court. Pursuant to Civil Code  1717(b)(2), the Court finds the allegation to be true and Corvel Corp. is deemed to be the prevailing party. The Court has reviewed the papers and records submitted in support of the attorney's fee request and finds the time and rate expended and charged to be reasonable. Corvel Corp. is therefore awarded $51,101.35. This minute order is effective immediately. No formal order is needed, C.R.C. rule 391, nor is further notice of this ruling required. C.C.P.  1019.5. c Department 54 April 1, 2005 Page 11 ______________ *** ITEM 20 04AM05256 PATRICIA SHORT VS. GRANT POLICE DEPARTMENT, ET AL Nature of Proceeding: Motion To Compel Filed By: SCHACHTER, ALESA Defendant's motion is granted; opposition was not received by the Court. Plaintiff Short is ordered to serve verified answers and responses, without objections, to defendant Grant Joint Union High School District's Form Interrogatories and Request for Production of Documents, sets one, no later than Monday, April 11, 2005. 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. C.C.P.  1019.5. c *** ITEM 21 04AM06700 COMCAST COMMUNICATIONS, INC. VS. JOE SINCLAIR Nature of Proceeding: MOTION FOR ORDER PERMITTING ADDITIONAL DISC/COMP FTHUR RESP Filed By: FRANCK, HERMAN Defendant and cross-complainant Joe Sinclair seeks an order permitting additional discovery; relief from excusable neglect and to compel further responses to discovery. Discovery in this limited jurisdiction case is governed by C.C.P.  94 and 95, which allow any combination of 35 interrogatories, demands to produce documents or things and Requests for admission; and authorize a motion for additional discovery. Defendant served Plaintiff with 54 Form Interrogatories, 3 Special Interrogatories, 4 Requests to Identify and Produce Documents and Things and 1 Request for Admissions, all of which were objected to as a violation of C.C.  94. The request for relief pursuant to C.C.P.  473 is denied as it is not applicable under this situation. The request for additional discovery pursuant to C.C.P.  95 is granted under the following terms and conditions: Defendant to re-serve his discovery, winnowing the requests to 35; if he thereafter determines additional discovery is needed, he may so move; in addition, defendant to pay plaintiff $500 for having to respond to the motion. This minute order is effective immediately. No formal order is needed, C.R.C. rule 391, nor is further notice of this ruling required. C.C.P.  1019.5. c Department 54 April 1, 2005 Page 12 ______________ ***