&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 5, 2005, 02:00 ITEM 1 01AS04979 STEPHEN M. WALTRIP, ET AL VS. KEVIN B. KIMPERLIN, ET AL Nature of Proceeding: MOT ENFORCE COMLIANCE WITH DEPO SUBPOENA Filed By: SANGSTER, EDWARD P. Continued to 04/19/2005 *** ITEM 2 02AS04467 CHERISSA CHEW, ET AL VS. DAVID & DAWN SAWKA, ET AL Nature of Proceeding: Motion To File Amended Complai Filed By: HAWK, MATTHEW T. Defendant/cross-complainant Woodside's motion for leave to file a second amended cross-complaint is granted In this slip and fall case, Woodside, builder of the homes was named as defendant. On December 11, 2003 Woodside filed a cross-complaint against the Sawkas, owners, for negligence. It also named Roes as cross-defendants in claims for declaratory relief and equitable indemnity. On March 22, 2004 Woodside filed an amended cross complaint with the same causes of action but identifying the Roes as Cache Creek, Russcon, and City of Folsom. Cache Creek and Russcon are subcontractors of Woodside. The case was arbitrated on March 2 2005 with the award in favor of plaintiff Cache Creek and Russon and against Woodside and the Sawkas. Discovery is, of course, closed. Now Woodside seeks to add causes of action for breach of contract, express indemnity, and negligence against Cache Creek and Russcon. It states it did not locate the subcontracts until after arbitration and it was not until February 14, 2005 that a site inspection revealed problems with drainage and landscaping. Although leave to amend is liberally granted, it is not automatic and is within the discretion of the court, taking into consideration moving party's diligence or lack therefor, and prejudice to the other side. Hulsey v Koehler (1990) 218 Cal.App.3d 1150, 1159. Woodside has been less than diligent but the court is not convinced that Cache Creek will be prejudiced if this motion is granted. In addition, it is a better use of judicial resources to have all claims tried together in one action There is no trial date. Additional discovery will be necessary, at least on the negligence cause of action. Discovery was closed 15 days before the arbitration date. Therefore, the court orders discovery reopened as to issues raised by the cross-complaint until 30 days before trial. Woodside shall file and serve the amended cross-complaint forthwith. This minute order is effective immediately. No formal order is required, the tentative ruling being sufficient notice. Department 53 April 5, 2005 Page 2 ______________ *** ITEM 3 02AS05901 MARILYN LAKE VS. AIRCO MECHANICAL, INC.,ETAL Nature of Proceeding: MOTION TO VACATE DISMISSAL Filed By: BRERETON, DREW Defendant/cross-complainant Airco Mechanical's motion to vacate the dismissal of its cross-complaint is unopposed and granted. Defendant inadvertently dismissed its cross-complaint in its entirety when it had intended to dismiss only cross-defendant Refnes. Airco shall submit a formal order pursuant to CRC Rule 391. *** ITEM 4 03AS01179 MARTHEA CALDWELL VS. DONALD MASUDA, ET AL Nature of Proceeding: MOTION TO COMPEL Filed By: FIELDS, CANDACE Defendant's motion to compel plaintiff's attorney to answer questions at his pending deposition is denied. Deponent is not refusing to attend his deposition and is not opposing this motion. He desires the court's guidance as to whether he must answer the proposed questions set forth in defendant's exhibit 3, which he believes seek information that is privileged. The court declines to give an advisory opinion. Deponent should attend his deposition and object to the questions as he sees fit. Defendant may then bring a motion to compel further answers and set forth the questions to which objections are made in a proper Rule 335 statement. This minute order is effective immediately. No formal order is required, the tentative ruling being sufficient notice. *** ITEM 5 03AS01907 KEITH M. SEEGMILLER VS. PETER C.T. WANG, ET AL Nature of Proceeding: MOTION FOR ORDER TO ENTER JUDGMENT Filed By: BRIGGS, CHARLES H. Continued to 05/05/2005 Department 53 April 5, 2005 Page 3 ______________ *** ITEM 6 03AS03995 EDINA HADZIC, ET AL VS. ALLSTATE INSURANCE, ET AL Nature of Proceeding: SUMMARY JUDGMENT (ALLSTATE) Filed By: DAVIS, LAURA J. Defendant Allstate Insurance's Motion for Summary Judgment, or in the Alternative for Summary Adjudication of Issues is CONTINUED, to Tuesday, June 21, 2005, to permit discovery to be had to obtain facts essential to justify plaintiff's opposition. Code of Civil Procedure section 437c(h). The Court, in the exercise of its discretion, has considered the late-filed opposition and supporting declaration of counsel, in order to afford a consideration of all evidence relating to the merits. The depositions of the persons most knowledgeable of the Florida Department of Safety and Motor Vehicles shall be taken by plaintiff's counsel and any supplemental evidence and opposition papers, together with an amended opposition to defendants' separate statement, shall be filed and served not later than Monday, June 5, 2005. Any supplemental reply papers shall be filed and served by moving parties not later than Tuesday, June 14, 2005. This minute order is effective immediately. No formal order nor further notice is required, the tentative ruling providing sufficient notice. 3995203 *** ITEM 7 03AS03995 EDINA HADZIC, ET AL VS. ALLSTATE INSURANCE, ET AL Nature of Proceeding: SUMMARY ADJUDICATION (WAHLA) Filed By: WHEELER, JOSEPH R. Defendant Arshad Wahla's Motion for Summary Judgment, or in the Alternative for Summary Adjudication of Issues is CONTINUED, to Tuesday, June 21, 2005, to permit discovery to be had to obtain facts essential to justify plaintiff's opposition. Code of Civil Procedure section 437c(h). The Court, in the exercise of its discretion, has considered the late-filed opposition and supporting declaration of counsel, in order to afford a consideration of all evidence relating to the merits. The depositions of the persons most knowledgeable of the Florida Department of Safety and Motor Vehicles shall be taken by plaintiff's counsel and any supplemental evidence and opposition papers, together with an amended opposition to defendants' separate statement, shall be filed and served not later than Monday, June 5, 2005. Any supplemental reply papers shall be filed and served by moving parties not later than Tuesday, June 14, 2005. This minute order is effective immediately. No formal order nor further notice is required, the tentative ruling providing sufficient notice. 3995203 Department 53 April 5, 2005 Page 4 ______________ *** ITEM 8 03AS04509 HENRY LIU, ET AL VS. CRESLEIGH HOMES CORP., ET AL Nature of Proceeding: MOTION FOR JUDGEMENT Filed By: PETER, ALOIS Dropped. *** ITEM 9 03AS04845 SALLY MARANA, ET AL VS. MARIE ZIMMERMAN, ET AL Nature of Proceeding: Summary Judgment Filed By: TRAUSCH, MICHELE K. Defendants Marie Zimmerman, Mark Zimmerman and Annadel Manor's Motion for Summary Judgment, or in the Alternative for Summary Adjudication of Issues on the complaint of plaintiff Golden Paradise Manor ("GPM") is GRANTED, in part and DENIED, in part. The Court rules on defendants' evidentiary objections as follows: objection no. 10 is SUSTAINED; objection nos. 1 - 9, 11 -19, are OVERRULED. The Court rules on plaintiffs' evidentiary objections as follows: objection nos. 3 - 4 are sustained; objection nos. 1 - 2 are OVERRULED. On August 25, 2004, this Court granted summary adjudication of a number of claims against moving parties. Defendants now move for summary adjudication of each of the remaining claims against them: the 8th cause of action for intentional misrepresentation, and the 1st through 3rd contract causes of action. The motion for summary adjudication of the 8th cause of action for intentional misrepresentation is DENIED. Defendants contend that Marie Zimmerman, individually or as agent for Annadale, never made any misrepresentation to plaintiff. Plaintiff Marana has admitted in her deposition that she never had a substantive conversation with Marie Zimmerman. As to Mark Zimmerman, defendant contends that plaintiff cannot show any reasonable reliance of the alleged misrepresentation. Moving parties previously moved for adjudication of this issue, which was denied by the Court in August 2004. Pursuant to C.C.P. section 437c(f)(2), a party may not move for summary adjudication based on issues asserted in a prior motion for summary adjudication and denied by the court, unless that party establishes to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion. If the Court were to reach the merits of the cause of action, however, the Court finds that disputed issues of material fact still remain for resolution at trial. Plaintiff has disputed material fact nos. 6 - 11, and submitted two additional material facts in opposition. There remain triable issues of material facts as to reliance on intentional misrepresentations by both Mark and Marie Zimmerman, that they would cooperate with GPM in obtaining its license by Sept. 1, 2003, additionally as to whether the condition of the facility and the status of Clark's license was misrepresented. Defendants Mark and Marie Zimmerman now move for summary adjudication of the 1st, 2nd and 3rd contract causes of action is GRANTED. On August 25, 2004, this Court granted summary adjudication as to defendant Annadale on the contract causes of action brought by plaintiff Golden Paradise Manor ("GPM"). Mark and Marie Zimmerman failed to request summary adjudication in their favor at that time. They now move for summary adjudication of the contract causes of action against them, on the grounds that there was no contractual relationship between defendants and plaintiff GPM. Plaintiff does not oppose the motion, on the grounds that the Court's prior ruling in favor of defendant Annadale on these causes of action, also entitles the individual defendants to summary adjudication on these causes of action. (Oppos. 8:13-23.) As there are remaining claims against the defendants for misrepresentation in plaintiff's complaint, defendants' motion for summary judgment is DENIED. The prevailing party defendants are directed to prepare an order for the Court's signature pursuant to C.C.P. section 437c(g) and C.R.C., Rule 391. 4845203 Department 53 April 5, 2005 Page 5 ______________ *** ITEM 10 04AS00861 PAUL AJLOUNY VS. JOHNNY CHAWI, ET AL Nature of Proceeding: Motion To Compel Filed By: Advanced to and heard on March 25, 2005. *** ITEM 11 04AS03825 GYAN KALWANI VS. CHASE MANHATTAN MORTGAGE CORPORATION, ETAL Nature of Proceeding: DEMURRER (LOANESTAR) Filed By: YOO, S. CHRISTOPHER Defendant Lonestar's demurrer to the first amended complaint is unopposed and sustained for all the reasons set forth in the demurring papers. As plaintiff has not filed any opposition suggesting how the defects can be cured, the demurrer is sustained without leave to amend. Defendant shall submit a formal order and judgment of dismissal. *** ITEM 12 04AS03825 GYAN KALWANI VS. CHASE MANHATTAN MORTGAGE CORPORATION, ET AL Nature of Proceeding: DEMURRER, MOTION TO STRIKE (CHASE) Filed By: YOO, S. CHRISTOPHER Defendant Chases's demurrer to the first amended complaint is sustained for all the reasons set forth in the demurring papers. As plaintiff has not filed any opposition suggesting how the defects can be cured, the demurrer is sustained without leave to amend. The motion to strike punitive damages is subsumed in the ruling on the demurrer. Defendant shall submit a formal order and judgment of dismissal. *** Department 53 April 5, 2005 Page 6 ______________ ITEM 13 04AS03825 GYAN KALWANI VS. CHASE MANHATTAN MORTGAGE CORPORATION, ET AL Nature of Proceeding: MOTION TO STRIKE Filed By: YOO. S. CHRISTOPHER See the ruling on item 12. *** ITEM 14 04AS04227 GLENN D. WHITE VS. ROD SCHWARTZ Nature of Proceeding: MOTION TO SET ASIDE DEFAULT Filed By: DUNN, REGINALD A. Cross-defendant White's motion to set aside the default taken against him by Cross-complainant Schwartz on the cross-complaint is granted on the ground of inadvertence and neglgect. At the time the cross-complaint was filed, White had taken Schwartz's default on the complaint. Thus White questioned whether Schwartz could file a cross-complaint. In addition, the cross- complaint he received was not file endorsed. On February 7, 2005 the clerk's application to set aside Schwartz'z default on the ground of clerical error (it was entered prematurely) was granted. This motion by White to set aside his default was filed on March 8, 2005. Although the motion was not accompanied by the proposed answer, White has submitted a proposed answer with his reply. White shall file and serve his answer to the cross-complaint forthwith. The court will not entertain oral argument on this matter. This minute order is effective immediately. No formal order is required, the tentative ruling being sufficient notice. *** ITEM 15 04AS04491 SHIRLEY HEWITT, ET AL VS. ROBBIN HEWITT, ET AL Nature of Proceeding: MOTION FOR ORDER APPOINTING REFEREE Filed By: ROGERS, DANIELLE Plaintiffs' motion for an order appointing a referee to ascertain the interests of lienholders is unopposed and granted. The court appoints the Hon. Darrel W. Lewis (Ret.). The court will sign the formal order submitted with the moving papers. Department 53 April 5, 2005 Page 7 ______________ *** ITEM 16 04AS05149 MAHMOOD NASSERI VS. COUNTY OF SACRAMENTO Nature of Proceeding: Demurrer Filed By: O'DEA, MARK P. Defendant's demurrer is unopposed and sustained. The complaint is devoid of any factual allegations to support any cause of action against defendant. As this is the original complaint, the demurrer is sustained with leave to amend. Plaintiff may file an amended complaint by April 15, 2005. This minute order is effective immediately. No formal order is required, the tentative ruling being sufficient notice. *** ITEM 17 04AM05463 DAG FINANCIAL TRUST VS. TANYA LANDON Nature of Proceeding: CLAIM OF EXEMPTION Filed By: LOEB, STEVEN S. The claim of exemption is denied to the extent of $265.00 per month or $132.50 per pay period, the amount by which judgment debtor's income exceeds her expenses. *** ITEM 18 05CM00007 COLUMBIA CREDIT SERV. INC. VS. JOAN CREASY, ET AL Nature of Proceeding: Petition To Confirm Arb Award Filed By: PUGH, JOHN J. Petitioner's petition to confirm the arbitration award is unopposed and granted. The court will sign the formal order and judgment submitted with the petition. *** Department 53 April 5, 2005 Page 8 ______________ ITEM 19 05CM00017 COLUMBIA CREDIT SERVICES, INC. VS. SHARON OWENS, ET AL Nature of Proceeding: Petition To Confirm Arb Award Filed By: PUGH, JOHN J. Petitioner's petition to confirm the arbitration award is unopposed and granted. The court will sign the formal order and judgment submitted with the petition. *** ITEM 20 05CM00019 COLUMBIA CREDIT SERVICES, INC. VS. LYLE LONG, ET AL Nature of Proceeding: Petition To Confirm Arb Award Filed By: PUGH, JOHN J. Petitioner's petition to confirm the arbitration award is unopposed and granted. The court will sign the formal order and judgment submitted with the petition. ***