&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 R. ROUSE, Clerk V. CARROLL, Bailiff April 4, 2005, 09:00 ITEM 1 00CS00980 PEOPLE OF THE ST OF CA. VS. 1991 FORD MUSTANG, ( SANDERS) Nature of Proceeding: Motion To Strike Filed By: LEONARD, STEPHANIE Petitioner's motion for order striking claim is unopposed and is granted. The record shows that real party in interest, Mark Sanders, failed to respond to discovery, failed to oppose petitioner's prior motion to compel discovery responses, and failed to comply with the court's order compelling discovery responses. Further, real party in interest has filed no opposition to this motion. The Court concludes that real party in interest has abandoned his claim, and that a terminating sanction will not result in a windfall to petitioner. The claim filed by real party in interest Mark Sanders is hereby stricken. Petitioner shall submit a formal order complying with CRC Rule 391 for the Court's signature. a *** ITEM 2 02AS02159 JOSEPH F. HARBOSON, III VS. NORCAL MUTUAL INS. CO., ET AL Nature of Proceeding: MOTION TO QUASH Filed By: SCHUERING, LEO H. JR. Defendant's motion to quash deposition subpoenas is granted in part and denied in part. With respect to the Garcia notice, defendant does not object to the deposition itself. As for plaintiff's document request, the court rules as follows: Nos. 1, 2: Granted. Notice under CCP section 1985.3 is required for the production of these documents. The character of the records maintained by defendants in Neil v. Archer does not change because they are held by defendant in this matter, Norcal. Nos. 3, 5, 6: Denied. Defendant may maintain and serve a privilege log for those documents defendant contends are privileged. No. 4: Granted. These documents are privileged under Business and Professions Code section 6094. No. 7: Granted. The request is overly broad. With respect to the Schuering notice, the motion is overruled, but deposition questions shall be limited in time to the period prior to Schuering's representation of defendant Garcia. As for plaintiff's document request, the court rules as follows: Nos. 1, 2, 4: Granted. The documents are protected by attorney-client and attorney work-product privileges No. 3, 5, 6: Denied, but limited in time as ordered above. Depositions shall be noticed for not later than April 29, 2005. This minute order is effective immediately. No formal order pursuant to CRC rule 391 or other notice is required. f Department 54 April 4, 2005 Page 2 ______________ *** ITEM 3 02AS06066 MARY SPOTT VS. UNITED RENTALS, ET AL Nature of Proceeding: Summary Judgment Filed By: WORKMAN, ROBIN G. Defendants United Rentals, Inc. and Kevin Willy's motion for summary adjudication of the fourth cause of action, wrongful termination in violation of public policy, is granted. Whether defendant United Rentals terminated plaintiff's employment is disputed. Plaintiff's deposition testimony merely states that Kobell did not tell plaintiff she was fired. A trier of fact could determine that the December 27, 2001 letter terminated plaintiff's employment. The word "termination" appears twice in the letter and plaintiff's "final check" was enclosed. In her phone message to Kobell, plaintiff did not quit her position. She stated that her physician had not released her to come back to work "yet." Nonetheless, defendants present evidence, which plaintiff does not dispute, that after October 3, 2001, when plaintiff went on medical leave, plaintiff has been permanently disabled and is unable to perform the job she previously held. Plaintiff's evidence of her ability to perform prior to October 3, 2001 is not relevant. Unable to perform the job she held as an employee, plaintiff is therefore unable to state a prima facie case for termination in violation of public policy, based on plaintiff's disability. Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33, 44. Defendants' deposition exhibits do not comply with CRC rule 316(c). Plaintiff's references to exhibits in her "disputed evidence" do not comply with CRC rule 313(j). Defendants' counsel shall prepare an order pursuant to CCP section 437c(g) and CRC rule 391. f *** Department 54 April 4, 2005 Page 3 ______________ ITEM 4 02AS07272 BILLY WAYNE BLAIR VS. COUNTY OF SACRAMENTO Nature of Proceeding: Motion To Compel Filed By: CLAUSS, PAUL C. Defendants Harold speelman and speelman Excavation's motion to compel responses to form and special interrogatories (sets one and two) and requests for production of documents (sets one and two), and production of documents is unopposed and is granted/denied as follows. Granted insofar as the motion seeks an order compelling responses. Plaintiff shall serve verified responses, without objection, no later than April 14, 2005. Denied insofar as the motion seeks an order compelling production of documents. The motion is 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. The minute order is effective immediately. No formal order pursuant to CRC Rule 391 or further notice is required. a *** ITEM 5 02AS07516 PEOPLE, ET AL VS. GRAND TOBACCO COMPANY, LTD. Nature of Proceeding: Motion To Quash Service Summon Filed By: KHACHADOURIAN, GILBERT Continued to 04/25/2005 *** ITEM 6 02AS07516 STATE OF CALIFORNIA VS. GRAND TOBACCO, ET AL. Nature of Proceeding: MOTION TO VACATE DEFAULT Filed By: KHACHADOURIAN, GILBERT Continued to 04/25/2005 Department 54 April 4, 2005 Page 4 ______________ *** ITEM 7 03AS01132 JAMES S. MASON,ETAL VS. MR. TRUCKER,ETAL Nature of Proceeding: Motion To Compel Filed By: LICHTNER, ALEXANDER O. Dropped. *** ITEM 8 03AS02518 MAGDALENA LOPEZ VS. PACIFIC BELL TELEPHONE COMPANY, ETAL Nature of Proceeding: Motion To Compel Filed By: COGER, STEVEN P. Defendant's motion to compel discovery and for sanctions is granted. Initially the Court notes that no opposition was filed within the time allowed under CCP section 1005. After time to file opposition had run, plaintiff sought an ex parte order extending time to file opposition. That application was denied. Defendant requests, and the Court hereby orders plaintiff to do the following: 1) produce all relevant documents referred to in her deposition, and a privilege log describing any documents withheld from production; 2) cooperate fully with defendant in securing records maintained by Dr. Marcia A. Hillary, Ph.D., concerning treatment by Dr. Hillary for matters related to her employment at Pacific Bell Telephone Company, including signing a release if necessary; 3) answer defendant's questions at deposition concerning plaintiff's relationship with Dr. Hillary; and 4) appear at the remaining sessions of her deposition on time. The Court declines to order plaintiff to produce her diaries and calendars as those items were not briefed in the moving papers, and thus plaintiff has not had a fair opportunity to respond. Defendant is awarded sanctions in the amount of $3,036.30 against plaintiff and her attorney of record, jointly and severally. The minute order is effective immediately. No formal order pursuant to CRC Rule 391 or further notice is required. a Department 54 April 4, 2005 Page 5 ______________ *** ITEM 9 03AS02780 GREGORY MCGRATH VS. JESSICA CROWCH, ET AL Nature of Proceeding: Motion To Compel Filed By: SCOFFIELD, LINDY H. Dropped. *** ITEM 10 03AS04521 GARY ERVIN VS. KISTEN CLEMENTS WYMORE, ET AL Nature of Proceeding: MOTION FOR ORDER QUASHING SUBPOENA DUCES TECUM Filed By: ERVIN, GARY Plaintiff's motion to quash subpena duces tecum is granted. Initially the Court notes that, according to the proof of service attached to the moving papers, the motion was personally served on March 11, 2005, which provides less than 16 court days notice of the hearing. However, as defendant argued the merits of the motion, the Court finds the defective service has been waived. Alliance Bank v. Murray (1984) 161 Cal.App.3d 1. The subpena was improperly served after the discovery cut-off date without obtaining leave of court to reopen discovery. The Court declines to treat the opposition as a motion to reopen discovery pursuant to CCP section 2024(e). The minute order is effective immediately. No formal order pursuant to CRC Rule 391 or further notice is required. a *** ITEM 11 04AS00452 SANDRA GAIL MOSLEY VS. HA T. PHAM, ET AL Nature of Proceeding: MT TO COMPEL PROD OF DOC Filed By: KALTENBACH, JOHN J. Dropped. Department 54 April 4, 2005 Page 6 ______________ *** ITEM 12 04AS00452 SANDRA GAIL MOSLEY, VS. HA T. PHAM, AN INDIVIDUAL, Nature of Proceeding: MT TO COMPEL RESP SPEC ROGG Filed By: KALTENBACH, JOHN J. Dropped. *** ITEM 13 04AS00452 SANDRA GAIL MOSLEY, VS. HA T. PHAM, AN INDIVIDUAL, Nature of Proceeding: MT TO COMPEL RESP TO ROG Filed By: KALTENBACH, JOHN J. Dropped. *** ITEM 14 04AS02004 WILLIAM E. KRUSE VS. PACIFIC BELL DIRECTORY Nature of Proceeding: DEMURRER Filed By: Matter continued to this date for oral argument only. The tentative ruling is reprinted below for the convenience of the parties and the Court: Defendant Pacific Bell Directory's demurrer to the first amended complaint is sustained/overruled as follows: First cause of action for breach of contract: sustained with leave to amend for failure to state a cause of action. The contract contains an integration clause. The written contract does not reference placement of the 2002 ad under plaintiff's dba "A." Although plaintiff contends in his opposition that the size and description of the ad also were not as agreed, this is not alleged in the first amended complaint. It is not clear from the face of the complaint that plaintiff paid defendant any amount for the 2002 ad, which could be claimed as restitutionary damages. Second cause of action for fraud: sustained with leave to amend for failure to state a cause of action. The first amended complaint alleges that plaintiff was induced to enter into an agreement to place an ad in the 3/03 directory by misrepresentations that the charges for the 2002 ad would be credited in full, and that he paid all chargers for the 3/03 directory in reliance on that misrepresentation. There is no allegation that defendant failed to credit the 2002 charges as it represented it would do. Instead, plaintiff alleges that the true facts were that the larger ad would not appear in the guide section but would be placed behind other larger ads in the attorneys section. There is no allegation that defendant made any representation concerning the location of the larger ad. Third cause of action for breach of the implied covenant of good faith and fair dealing: sustained without leave to amend. This cause of action is redundant to the first cause of action for breach of contract. Fourth cause of action for unfair competition and business practices: overruled on the grounds asserted. The first amended complaint sufficiently alleges that defendant received profits as plaintiff paid for the 3/03 ad. Fifth cause of action for declaratory relief: overruled. Sixth cause of action for violation of the Fair Credit Billing Act: overruled. The demurrer does not show any deficiency in the pleading. The only authority cited in the moving papers on this cause of action is inapposite as it does not address the requirements of pleading a violation of the Fair Credit Billing Act. The Court does not consider defendant's contention that this is not a consumer credit case under the definition of "creditor" in the Act because that argument was first made in the reply, depriving plaintiff of a fair opportunity to respond. Seventh cause of action for violation of the Fair Debt Collection Practices Act: sustained without leave to amend for failure to state a cause of action. The face of the complaint shows that the purpose of the ad was business related (plaintiff's law practice), and not for personal, family or household use. In the Slenk case, the use of the backhoe to build plaintiff's family home created the issues of fact as to whether the transaction was personal or business related. Such issues are not present here. An amended complaint may be filed and served no later than April 14, 2005. The minute order is effective immediately. No formal order pursuant to CRC Rule 391 or further notice is required. a Department 54 April 4, 2005 Page 7 ______________ *** ITEM 15 04AS02072 RESTORATION OF HOPE, ET AL. VS. CYRUS YOUSSEFI, ET AL Nature of Proceeding: Demurrer Filed By: RICE, JOEL A. Dropped. *** ITEM 16 04AS02072 RESTORATION OF HOPE, ET AL. VS. CYRUS YOUSSEFI, ET AL. Nature of Proceeding: DEMURRER Filed By: DILLON, LURA L. Continued to 04/15/2005 *** ITEM 17 04AS02072 RESTORATION OF HOPE, LLC, VS. CYRUS YOUSSEFI, ET AL. Nature of Proceeding: MOTION FOR SANCTIONS Filed By: RICE, JOEL A. Dropped. *** ITEM 18 04AS03564 DEBORAH GABEL VS. VICTORIA NEILSON, ET AL Nature of Proceeding: Demurrer Filed By: WHITEHEAD, CAMERON J. Defendants Sanford I. Horowitz and D. Briana Rivera's demurrer to the first amended complaint is unopposed and is sustained with leave to amend for failure to state a cause of action against demurring defendants. The facts alleged do not establish a duty on behalf of demurring defendants. Hall v. Superior Court (2003) 108 Cal.App.4th 706, 714-715. Plaintiff's failure to file an opposition to the demurrer is deemed a concession of its merit. An amended complaint may be filed and served no later than April 14, 2005. The minute order is effective immediately. No formal order pursuant to CRC Rule 391 is required. The notice of motion does not provide notice of the Court's tentative ruling system as required by Local Rule 3.04(D). Counsel for moving party is ordered to notify plaintiff/defendant immediately of the tentative ruling system and to be available at the hearing, in person or by telephone, in the event plaintiff/defendant appears without following the procedures set forth in Local Rule 3.04(B). a Department 54 April 4, 2005 Page 8 ______________ *** ITEM 19 05CS00192 IN RE: MICHAEL A RUVALCABA Nature of Proceeding: Petition For Change Of Name Filed By: RUVALCABA, MICHAEL A. The petition is unopposed and is granted. a *** ITEM 20 CV527932 AEROJET-GENERAL CORP. VS. FIDELITY & CASUALTY CO., ET AL Nature of Proceeding: MOT FOR LEAVE TO FILE FOURTH SUPPLEMENTAL COMPLAINT Filed By: BLUMENSTEIN, CARL L. Plaintiff's motion for leave to file fourth supplemental complaint is granted. The Court is not persuaded by defendant's assertions of prejudice, as defendant has not identified any specific discovery that it needs to undertake that cannot be undertaken in the time remaining prior to the discovery cut-off. Plaintiff may file and serve the amended pleading no later than April 14, 2005. The minute order is effective immediately. No formal order pursuant to CRC Rule 391 or further notice is required. a *** ITEM 21 CV541146 PAL CHIMA VS. WILLIAM WENIGER Nature of Proceeding: MOTION FOR RECONSIDERATION Filed By: CHIMA, PAL This matter must be heard by Judge Abbott, and therefore it is transferred to Dept. 14. Plaintiff is directed to call the clerk of Dept. 14 for a new date and time for hearing. a Department 54 April 4, 2005 Page 9 ______________ *** ITEM 22 03AM09872 STUART GRINSTAIN VS. ZAINO MIZANI Nature of Proceeding: Default Hearing Filed By: ARMSTRONG, RICHARD J. Appearance Required. *** ITEM 23 04AM05628 CITIBANK SOUTH DAKOTA N.A. VS. BRANDON BANH Nature of Proceeding: Summary Judgment Filed By: GOLDING, MATTHEW B. This matter is dropped from calendar pursuant to the order of March 25, 2005 staying this action pending arbitration. a *** ITEM 24 04AM07174 SHIRLEY MINCKS VS. WIENERSCHNITZEL Nature of Proceeding: Motion To Withdraw Atty of Rec Filed By: BOZARTH, ROSS The motion to withdraw is unopposed and is granted on condition that an appropriately completed formal order is lodged in Dept. 54 prior to hearing. CRC Rule 376(e) requires that the formal order be lodged with the court and served on the client with the moving papers. a *** ITEM 25 04AM09136 DISCOVER FINANCIAL SERVICES, INC. VS. RON CUMMINGS Nature of Proceeding: MOT TO COMPEL RESP TO ROG Filed By: HUNT, MICHAEL S. Plaintiff's motion to compel responses to special interrogatories (set one) and demand for production of documents (set one) is unopposed and is granted. Defendant shall serve verified responses, without objection, no later than April 14, 2005. 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. a Department 54 April 4, 2005 Page 10 ______________ *** ITEM 26 04AM09136 DISCOVER FINANCIAL SERVICES, VS. RON CUMMINGS, ET AL. Nature of Proceeding: MOT FOR ORD MTRS REQ FOR ADM Filed By: HUNT, MICHAEL S. Plaintiff's motion for order that requests for admissions be deemed admitted is unopposed and is granted. The truth of the matters asserted in the request for admissions served on defendant Ron Cummings on January 10, 2005 is hereby deemed admitted unless responses substantially complying with CCP section 2033(f)(1) are served prior to hearing. CCP section 2033(k). Plaintiff is awarded mandatory sanctions pursuant to CCP 2033(k) in the amount of $121.30 against defendant Ron Cummings. The minute order is effective immediately. No formal order pursuant to CRC Rule 391 or further notice is required. a *** ITEM 27 05AM00444 NUVELL CREDIT CORPORATION VS. CHARLES O. NWANKWO, ET AL Nature of Proceeding: Writ of Possession Hearing Filed By: PARSA, PARASTCO Plaintiff's application for writ of possession is unopposed and is granted on condition that proof of service of the summons and complaint and moving papers is filed in Dept. 54 prior to hearing. Plaintiff has produced evidence establishing that defendant has no equity in the vehicle. Therefore, plaintiff is not required to file an undertaking. CCP section 515.010. The defendant may prevent plaintiff from taking possession of the vehicle, or may regain possession after the vehicle has been taken by filing an undertaking in the amount of $28,000. a ***