&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 AMOUNTèS 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 DAVID W. ABBOTT, Judge T. WEST, Clerk V. CARROLL, Bailiff April 4, 2005, 02:00 ITEM 1 00AS06283 PAUL LYONS VS. GARY MOFFATT, ET AL Nature of Proceeding: Motion To Withdraw Atty of Rec Filed By: CHANDLER, JAMES P. Motion to Withdraw as Attorney of Record for defendant Brandon Hintz is denied without prejudice. The Court requires the mandatory Judicial Council form declaration. The current declaration does not contain all the information required by the judicial council form, including upcoming scheduled matters. In addition, the motion was not served on the other party(ies). The minute order is effective immediately. *** ITEM 2 01AS00842 BRYON N. SATTLER, ET AL VS. POUPARIAN INVESTMENT CORP, ET AL Nature of Proceeding: DEMURRER & MOTION TO STRIKE Filed By: WENZEL, TODD J. Cross-defendant Philips Products, Inc.'s Demurrer and Motion to Strike portions of the Second Amended Cross-complaint of Allen P. Shephard d.b.a. Creative Window Concepts are DROPPED from the Court's calendar as MOOT. Cross-defendant Philips Products filed its demurrer and motion to strike portions of the 1st through 8th causes of action of the Second Amended Cross-complaint of Allen P. Shephard d.b.a. Creative Window Concepts on January 19, 2005. Although no opposition to the motion has been received, on March 21, 2005, Allen P. Shephard d.b.a. Creative Window Concepts filed a Request for Dismissal of his entire Second Amended Cross-complaint on March 21, 2005. The motions are therefore moot. This minute order is effective immediately. No formal order nor further notice is required, the tentative ruling providing sufficient notice. 0842203 Department 53 April 4, 2005 Page 2 ______________ *** ITEM 3 02AS07339 VERONICA R. PEARSON VS. GEORGE HOLLAND, ET AL Nature of Proceeding: Summary Judgment Filed By: STAFF, RICHARD Defendants Danny Brace Jr. and The Law Firm of Brace and Crowdis' Motion for Summary Judgment, or in the Alternative, for Summary Adjudication of Issues is GRANTED. Opposing party plaintiff has failed to comply with California Rules of Court, Rule 342(f), which requires that: "Each material fact claimed by the moving party to be undisputed must be set out verbatim on the left side of the page, below which must be set out the evidence said by the moving party to establish that fact, complete with the moving party's references to exhibits. On the right side of the page, directly opposite the recitation of the moving party's statement of material facts and supporting evidence, the response must unequivocally state whether that fact is `disputed' or `undisputed.' An opposing party who contends that a fact is disputed must state, on the right side of the page directly opposite the fact in dispute, the nature of the dispute and describe the evidence that supports the position that the fact is controverted. That evidence must be supported by citation to exhibit, title, page, and line numbers in the evidence submitted." Plaintiff has failed to identify any facts which are disputed, and in her separate statement of additional facts, cites to her own complaint. A party cannot rely on the allegations of her own pleadings, even if verified, to make or supplement the evidentiary showing required in the summary judgment context. College Hosp. v. Superior Court (1994) 8 Cal. 4th 704, 720. Plaintiff in pro per Veronica Pearson's Complaint alleges a single cause of action against both defendants for legal malpractice in connection with their representation of her in the underlying litigation arising out of a multi-car auto accident, on May 4, 1997. Plaintiff in pro per alleges that in the underlying litigation, defendants failed to name as defendant Eduardo A. Downey and Trans-Bay Trucking, who was identified as the cause of the accident in the Sacramento Police Report. Defendants contend that plaintiff in pro per's complaint for legal malpractice is barred by the statute of limitations. Alternatively, even if the complaint is not barred by the statute of limitations, defendants assert that they are not the cause of any harm to plaintiff. Plaintiff was initially represented by George Holland, who timely filed a complaint on her behalf in 1998. (UMF 2-3.) On April 21, 1999, plaintiff substituted in these defendants as her counsel of record. (UMF 4.) On January 6, 2000, this Court granted moving parties' motion to withdraw as counsel of record. Plaintiff proceeded to trial, in pro per, in June 2000, against the only remaining defendant. Defendnats assert that Trans-Bay was named as a Doe defendant and answered the underlying complaint in August 2000. Plaintiff's recovery was limited by the fact that Trans-Bay's insurer became insolvent. Plaintiff was informed of this by CIGA, and was advised to file an uninsured motorists' claim by defendants, but she refused to do so. (UMF 7-8, 10.) These events were a basis for defendants' withdrawal as counsel of record for plaintiff in the underlying action. The statute of limitations in an action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, whichever occurs first. Code of Civil Procedure section 340.6. Here, plaintiff discovered the facts constituting defendants' wrongful act or omission at least as early as December 30, 1999, or more than a year and a half before the filing of the July 16, 2001 complaint for legal malpractice. Further, as defendnats advised plaintff to file a UM claim, but she refused to do so, they are not the cause of any injury she sustained as a result. Moving parties have met their initial burden of proof on summary judgment. Plaintiff has failed to identify any triable issues of material fact remaining for determination by the finder of fact at trial, thus summary judgment is granted in favor of defendants on the complaint. The prevailing party defendants are directed to prepare an order and judgment of dismissal for the Court's signature pursuant to C.C.P. section 437c(g) and C.R.C., Rule 391. 7339203 Department 53 April 4, 2005 Page 3 ______________ *** ITEM 4 03AS01445 GEORGE T. JORDAN, ET AL VS. CAROTHERS CONSTRUCTION, INC.ETAL Nature of Proceeding: Motion To File Amended Complai Filed By: DIEPENBROCK, EILEEN M. Motion by City of Folsom to File Amended Cross-complaint is unopposed and is granted. Moving party shall file and serve the amended cross-complaint on or before April 14, 2005. The minute order is effective immediately. No formal order or further notice is required, the tentative ruling providing sufficient notice. *** ITEM 5 03AS02841 UTILITY CONSERV SERV., VS. ELECTRIC & GAS INDUSTRIES, ET AL Nature of Proceeding: Summary Judgment Filed By: BROWN, ADAM C. Continued to 05/16/2005 *** ITEM 6 03AS06901 DEBORA SLAY VS. BRYAN GILLGRASS Nature of Proceeding: Motion To Withdraw Atty of Rec Filed By: SO, SANG Y. Dropped from calendar on the court's own motion as moot. This case was dismissed on March 29, 2005. *** ITEM 7 04AS01819 GENADI HOVHANNISYAN, ET AL VS. GEVORG PETROSYAN, ET AL Nature of Proceeding: Summary Judgment Filed By: BRAGG, R. LAWRENCE Defendant Ceccardi's Motion for Summary Judgment, or in the Alternative for Summary Adjudication of Issues is DENIED. Defendant Ceccardi's Request for Judicial Notice is GRANTED. Plaintiff's evidentiary objection to the deposition testimony of Michael Allison, taken October 6, 2004, on the ground that plaintiff's counsel was not given written or oral notice of that deposition, is OVERRULED. Defendant has submitted admissible evidence that written notice was timely given to plaintiff's counsel. Both the consolidated complaints allege a single cause of action for negligence against defendant Ceccardi. These consolidated actions arise out of a two car motor vehicle accident, which occurred on the evening of March 16, 2003. Defendant Petrosyan was driving an Acura southbound on Sunrise Blvd., while defendant Ceccardi was driving a Camry northbound on Sunrise, when suddenly, without warning, Petrosyan's vehicle veered sharply left, crossed the center divider markings and crossed over both lanes of oncoming traffic, resulting in Ceccardi's vehicle striking Petroysan's. (UMF 1-3.) Both complaints allege that both drivers were negligent. Ceccardi asserts that he was traveling at the posted speed limit and exercised due care in operating his vehicle, and therefore was not a contributing cause of the accident. (MF 5-7.) In opposition, plaintiff Blackburn disputes that defendant Ceccardi was exercising due care by traveling at the posted speed limit given that it was dark and rainy the condition of the roadway was wet. (DMF 5-7, 8.) Vehicle Code section 22350 provides that "No person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent having due regard for weather, visibility, the traffic on, and the surface and width of, the highway, and in no event at a speed which endangers the safety of persons or property." Since 1975, when the California Supreme Court adopted a rule of comparative negligence, a system under which liability for damage will be borne by those whose negligence caused it in direct proportion to their respective fault, in Li v. Yellow Cab Co. (1975) 13 Cal. 3d 804; if a party is found to be even one percent liable for plaintiff's injuries, he is not free of comparative fault. The Court here finds that disputed issues of material fact remain for determination by the finder of fact at trial, as to whether Ceccardi was traveling at a reasonable speed given the rainy weather and dark of night, requiring that the motion be denied. The prevailing party plaintiff is directed to prepare an order for the Court's signature pursuant to C.C.P. section 437c(g) and C.R.C., Rule 391. 1819203 Department 53 April 4, 2005 Page 4 ______________ *** ITEM 8 04AS02449 SARWAN SINGH, ET AL VS. GURU NANAK SAT SANGAT OF CA, ET AL Nature of Proceeding: Demurrer Filed By: ORTIZ, JAEES S. Defendants Demurrer to the 2nd Amended Complaint is sustained with leave to amend for uncertainty and failure to state a cause of action. Plaintiffs filed a late opposition on March 28, 2005. Oppositions are due 9 court days before the hearing, and this opposition was filed 4 court days before the hearing. The court is not considering the late-filed opposition. Local Rule 3.03(C). The Reply was not considered because it was received too late before the tentative ruling was prepared. Plaintiffs allege 15 untitled causes of action alleging, among other things, that the defendants have violated the Corporations Code and the Bylaws by ejecting plaintiffs as members of the Board of Directors of Elsie Temple, taking over assets, wrongfully firing the priest, and not allowing plaintiffs to worship at the Temple. Although the plaintiffs have not complied with the earlier court orders on the earlier demurrers, and the 2nd amended complaint is still unduly cumbersome and contradictory, the pleading has been amended sufficiently that the court is persuaded that at least some cause of action can be stated against defendants; therefore the court will not sustain the demurrer without leave to amend despite plaintiffs failure to cure all the defects. Plaintiffs have now alleged at least some specific violations of the Bylaws by citing specific sections. The Complaint still suffers from the following defects which must be cured: (1) For each cause of action, if a violation of the Corporations Code and the Bylaws is alleged, the specific code section or Bylaw section must be cited. It is not sufficient to state that defendants violated the Bylaws "and/or" the Corporations Code. (2) Plaintiffs must comply with CRC 312(g). Each cause of action must be labeled. If a cause of action is against all individual defendants, the caption must so state. The allegation "defendants, or some of them," which occurs throughout the complaint, renders the pleading uncertain, implying that not all of the defendants are named in that cause of action. Both the caption and the body of each cause of action must state which defendant is being named. Plaintiffs may file and serve a 3rd amended complaint on or before April 15, 2005. Response to be filed and served within 10 days of service of the amended complaint, 15 days if served by mail. Although not required by rule or statute, if the response is a demurrer the court requests that defendants attach a copy of the amended complaint to the moving papers. The minute order is effective immediately. No formal order or further notice is required, the tentative ruling providing sufficient notice. Department 53 April 4, 2005 Page 5 ______________ *** ITEM 9 04AS03701 DONNA MURPHY VS. ELI LILLY, ET AL Nature of Proceeding: MOTION TO APPEAR PRO HAC VICE Filed By: OPPEDAHL, MARY C. Applications of Nina Gussack and Barry Boise to Appear Pro Hace Vice for defendant Eli Lilly, Inc. are unopposed and are granted. The minute order is effective immediately. No formal order or further notice is required, the tentative ruling providing sufficient notice. *** ITEM 10 04AS03879 LOURDES NAVEA VS. METHODIST HOSPITAL, ET AL Nature of Proceeding: MOTION TO SET ASIDE DEFAULT Filed By: SALENKO, BRUCE E. Dropped. *** ITEM 11 04AS04509 DANIEL SCHEMBRI, ET AL VS. FAYEZ ROMMAN, M.D. Nature of Proceeding: Demurrer Filed By: MARTIN, JULIE CLARK Dropped. *** ITEM 12 05CS00123 MARILYN SCHUYLER, ET AL VS. GEICO INSURANCE COMPANY Nature of Proceeding: Petition To Compel Arbitration Filed By: ARNOLD, CLAYEO C. Dropped. y Department 53 April 4, 2005 Page 6 ______________ *** ITEM 13 05CS00183 IN RE: DEAN ANTHONY JENTES Nature of Proceeding: Petition For Change Of Name Filed By: JENTES, DEAN Continued to 05/10/2005 *** ITEM 14 05CS00195 IN RE: TIMOTHY ALAN BROWN, ET AL Nature of Proceeding: Petition For Change Of Name Filed By: BROWN, TIMOTHY Petition for Name Changes is denied without prejudice. Petitioner is required to provide competent evidence that he is not the person listed on the U.S. Transportation Safety Administration's "No Fly" list. *** ITEM 15 05CS00197 IN RE: NILOU FAR SOLTANI Nature of Proceeding: Petition For Change Of Name Filed By: SOLTANI, NILOUFAR Petition for Name and Gender change is denied without prejudice because no doctor's declaration was attached to the petition. Health & Safety Code section 103430(a). *** ITEM 16 05CS00297 ELI FRANK, ET AL VS. KAT CONSTRUCTION, INC. Nature of Proceeding: PET RELEASE FROM MECHANIC'S LIEN Filed By: FERRIS, FRANK J. Petition for Release from Mechanic's lien is denied without prejudice. There is no certified copy of the lien attached to the petition. Civil Code 3154(b)(5). Department 53 April 4, 2005 Page 7 ______________ *** ITEM 17 03AM10141 ASSET ACCEPTANCE VS. JANICE A. LEWIS Nature of Proceeding: CLAIM OF EXEMPTION Filed By: DAWSON, ANGELA C. Claim of exemption is denied to the extent judgment creditor is entitled to $150 per pay period ($150 per month). Any amounts retained in excess thereof are to be returned to the judgment debtor. *** ITEM 18 04AM10205 PACIFIC BELL DIRECTORY VS. KIMBERLY T. LE., ET AL Nature of Proceeding: Writ Of Attachment Filed By: COOK, DAVID J. Dropped. *** ITEM 19 99CM00285 STATE OF CALIFORNIA, ET AL VS. VICTORIA NELSON Nature of Proceeding: CLAIM OF EXEMPTION Filed By: KURTTILA, J. Claim of exemption is denied to the extent judgment creditor is entitled to $275 per pay period, up to $550 per month. The judgment debtor has not met her burden of proof to establish that the underlying judgment for wrongfully obtained unemployment benefits is void. Judgment debtor has not established by her financial statement that she does not have sufficient wages to pay the debt. The judgment debtor is not legally obligated to pay child support of $200 to the mother(s) of her son's children. In addition, the $200 a month entertainment expense is excessive and should be applied to the debt. Moreover, she has substantial equity in the out of state real property. When an underlying judgment is for the necessities of life (here, unemployment benefits), there is no exemption for the necessities of life. CCP 706.051(c)(1). Any amounts being retained in excess of $550 per month are to be returned to the judgment debtor. Department 53 April 4, 2005 Page 8 ______________ ***