&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 P. FRESQUEZ, Bailiff April 5, 2005, 09:00 ITEM 1 02AS02159 JOSEPH F. HARBISON, III VS. NORCAL MUTUAL INS. CO., ET AL Nature of Proceeding: Motion For Reconsideration Filed By: HARBISON, JOSPEH F. III This matter is continued on the Court's own motion to April 8, 2005. f *** ITEM 2 02AS04066 EPIFANIA CONSTANCIO VS. K-MART CORPORATION Nature of Proceeding: Motion For Judgment On Pleadin Filed By: BIERNAT, REBECCA M. In support of its motion for judgment on the pleadings, defendant K-Mart requests judicial notice of orders made by the Bankruptcy Court. Those orders establish that plaintiff's claim has been reclassified and/or reduced from $5,000,000 to $7,500. Defendant does not explain how this determination somehow estops plaintiff from proceeding in this action, nor does it explain why the claim is now deemed resolved. The fact the motion is not opposed does not resolve the legal issues presented. The motion for judgment on the pleadings 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 5, 2005 Page 2 ______________ *** ITEM 3 02AS06462 STEPHANIE DARNELL VS. GUSTAVO CORTEZ, ET AL Nature of Proceeding: HEARING TO APPEAR AS COUNSEL PRO HAC VICE Filed By: CALNERO, CARL J. Defendants' application to have John W. Patton, Jr. and David F. Ryan appear as counsel Pro Hac Vice is dropped as the applications are incomplete; neither states the residence address of the applicants nor the telephone number of the active member of the State Bar of California who is attorney of record. C.R.C. rule 983(b)(1) and (6). *** ITEM 4 03AS00610 MARK A. GRANT VS. DCI, ET AL Nature of Proceeding: MOTION OF INTENTION TO MOVE FOR NEW TRIAL Filed By: GRANT, MARK A. This matter will be heard in Dept. 42 at 2:00 p.m. on April 5, 2005. Plaintiff's motion for new trial is denied. Contrary to defendant's contention, a motion for new trial is appropriate to review a ruling granting summary judgment. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 858. However, the Court agrees with defendant that there is no merit to any of the grounds of the motion. In this medical malpractice action, the only issue was whether there was a triable issue of fact as to whether defendants met the standard of care. As supported by the authorities cited in the ruling, a defendant may meet his initial burden on this issue by his own declaration. Uncontroverted declarations must be accepted as true without considering issues of credibility. CCP section 437c(e). Plaintiff's request that the Court appoint, pursuant to Evidence Code section 730, a medical expert to testify on his behalf is denied. The purpose of Evidence Code section 730 is to allow for the appointment of a neutral expert to report to the Court on factual issues such as a criminal defendant's psychiatric condition, or the value of property in condemnation or dissolution proceedings, and the like. In a civil action for medical malpractice, it is plaintiff's burden to produce expert testimony when required to support his allegations. Instead of retaining an expert witness on his own behalf, plaintiff attempted to meet his burden with his own declaration. For the reasons set forth in the ruling, plaintiff's declaration was insufficient, as the standard of care in administering dialysis treatment requires expert medical opinion. The subpoena served by plaintiff is ineffective as this action is no longer pending. Therefore, the motion to quash subpoena is dropped as moot. The minute order is effective immediately. No formal order pursuant to CRC Rule 391 or further notice is required. a Department 54 April 5, 2005 Page 3 ______________ *** ITEM 5 03AS01132 JAMES S. MASON,ETAL VS. MR. TRUCKER,ETAL Nature of Proceeding: Motion To Compel Filed By: LICHTNER, ALEXANDER O. Dropped. *** ITEM 6 03AS01132 JAMES S. MASON, ET AL. VS. MR. TRUCKER, INC., ET AL. Nature of Proceeding: MOT TO COMPEL SPEC ROG Filed By: LICHTNER, ALEXANDER O. Dropped. *** ITEM 7 03AS06722 TAMARA L. RAWLINGS VS. EDWARD ALBERT BAUMAN, ET AL Nature of Proceeding: MOT TO COMPEL RESP TO ROG Filed By: WILKINSON, SUSAN L. Dropped. *** ITEM 8 03AS06722 TAMARA L. RAWLINGS, VS. EDWARD ALBERT BAUMAN, ET AL. Nature of Proceeding: MT FOR ORD MTRS REQ ADM DMD AD Filed By: WILKINSON, SUSAN L. Plaintiff's motion is partially granted; opposition was not received by the Court. Mr. Halloran's response to the Request for Admissions, set one, were not verified under oath; see C.C.P.  2015.5, therefore they are not a valid response. Mr. Halloran must re-serve his Response, verified under oath, no later than Friday, April 15, 2005. The request for a monetary sanction is denied; defendant served a timely response, albeit unverified. This minute order is effective immediately. No formal order is needed, C.R.C. rule 391. Plaintiff to serve Mr. Halloran with a copy of the Court's ruling, C.C.P.  1019.5, no later than Tuesday, April 5, 2005.. c Department 54 April 5, 2005 Page 4 ______________ *** ITEM 9 04AS02124 HARRY BIANCHI ETAL VS. THE REGENTS OF THE UNIVERSITYO OF CA Nature of Proceeding: Demurrer Filed By: CORR, JONATHAN A. The demurrer to the third cause of action, tort per se: elder abuse, and the fourth cause of action, intentional infliction of emotional distress, is overruled. The first amended complaint alleges plaintiff was intentionally physically and chemically restrained when there was no medical necessity, informed consent or physician appoved purpose for such. In addition, plaintiffs allege defendants knew Mr. Bianchi would suffer from restraint use but, despite this knowledge, intentionally used the restraints for their convenience. This sufficiently alleges outrageous conduct. Defendant characterizes these allegations as conclusory; plaintiffs claim they are ultimate facts. For purposes of a demurrer, the facts are sufficiently alleged. Defendant to file and serve its answer no later than Friday, April 15, 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 10 04AS02124 HARRY BIANCHI, VS. REGENTS OF THE UNIVERSITY OF CA DAVIS, Nature of Proceeding: MOTION TO STRIKE Filed By: CORR, JONATHAN A. The motion to strike the request for punitive damages is denied. Plaintiffs have sufficiently alleged a claim for punitive damages. The motion to strike the request for injunctive relief is denied at this time. The Court does not wish to limit the remedies that may be available after trial of this matter. In its reply, defendant makes a legal argument not raised in the moving papers: the request for punitive damages is improper due to plaintiff's failure to comply with C.C.P.  425.13. The allegations however show that the gravamen of the complaint, and the request for punitive damages, is for elder abuse. C.C.P.  425.13 does not apply. The motion to strike on that basis 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 5, 2005 Page 5 ______________ *** ITEM 11 04AS02190 CYNTHIA DENNY, ET AL. VS. WAYNE LATHAM, ET AL. Nature of Proceeding: MOTION FOR PROTECTIVE ORDER Filed By: ELLIS, MARK E. Defendant's motion for a protective order is granted. Defendant shall not be deposed prior to April 26, 2005. Defendant has presented evidence that he is a "threat to himself" and "there is a distinct possibility that he will in fact attempt suicide." According to defendant's expert, Rockers, requiring defendant to undergo a deposition at this time "may cause irreparable mental distress and damage, which could ultimately lead to his attempting to commit suicide, as he threatened he would do." In their opposition, which consists primarily of a recitation of events leading up to defendant's motion, plaintiffs ignore defendant's threat to commit suicide and his purchase of a weapon to do so. Defendant's showing is sufficient for the court to find that the taking of defendant's deposition at this time would be "unreasonable." CCP section 1987.1. On March 15, 2005, Rockers examined defendant. In his opinion, defendant would need six to eight weeks of medication and therapy. Presumably, because of the seriousness of his condition, defendant began treatment immediately. Therefore, defendant may be deposed on or after April 26, 2005. This minute order is effective immediately. No formal order pursuant to CRC rule 391 or other notice is required. Defendant's application to file his motion for protective order under seal is granted. Defendant's counsel shall prepare an order for the court's signature complying with CRC rules 243.1(e) and 391. Defendant's motion to continue trial, set for hearing on April 6, 2005, is advanced to April 5, 2005, so that it may be heard with defendant's motion for protective order. The motion is granted. Upon "a showing of good cause stated in the record," a court may continue for 15 days a matter set by preference under CCP section 36. Id. As discussed above, defendant has demonstrated good cause. The trial date, originally set for April 26, 2005, is continued to May 11, 2005. This minute order is effective immediately. No formal order pursuant to CRC rule 391 or other notice is required. f Department 54 April 5, 2005 Page 6 ______________ *** ITEM 12 04AS04698 THOR CREDIT CORPORATION, ET AL. VS. ISAAC CHAVEZ, JR., ETAL. Nature of Proceeding: MT TO DM FACTS ADMITTED/SNCTNS Filed By: HENDRY, JOHN A. Plaintiff's motion to have admissions deemed admitted is granted. The Request for Admissions, set one, are deemed admitted unless, prior to the hearing, Mr. Chavez serves proposed responses that comply with Code of Civil Procedure Section 2033(f)(1). Code of Civil Procedure Section 2033(k). The request for a mandatory monetary sanction is granted. C.C.P.  2033(k). Plaintiff is awarded $436.30 from defendant Chavez. This minute order is effective immediately. No formal order is needed, C.R.C. rule 391. Plaintiff to serve notice of the ruling no later than Tuesday, April 5, 2005. C.C.P.  1019.5. c *** ITEM 13 04AS04698 THOR CREDIT CORPORATION, VS. ISAAC CHAVEZ, JR., ET AL. Nature of Proceeding: MOTION TO COMPEL Filed By: HENDRY, JOHN A. Plaintiff's motion is granted; opposition was not received by the Court. Defendant Isaac Chavez is ordered to serve verified answers, without objections, to Plaintiff's Form Interrogatories, set one, no later than Friday, April 15, 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. Plaintiff to serve defendant with notice of the Court's ruling no later than Tuesday, April 5, 2005. C.C.P.  1019.5. c Department 54 April 5, 2005 Page 7 ______________ *** ITEM 14 04AS04698 THOR CREDIT CORPORATION, ET AL. VS. ISAAC CHAVEZ, JR., ETAL. Nature of Proceeding: MOTION TO COMPEL Filed By: HENDRY, JOHN A. Plaintiff's motion is granted; opposition was not received by the Court. Defendant Isaac Chavez is ordered to serve a verified response, without objections, to plaintiff's Request for Production of Documents, set one, no later than Friday, April 15, 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. Plaintiff to serve defendant with notice of the Court's ruling no later than Tuesday, April 5, 2005. C.C.P.  1019.5. c *** ITEM 15 01AM10154 SHANE LUDINGTON VS. FREDDY COHAN, ET AL Nature of Proceeding: Motion To Strike Filed By: NICKENS, THOMAS A. Rather than striking the answer of defendant Cohan and entering a default and default judgment for defendant's failure to appear for his deposition, the Court issues an evidentiary sanction: defendant is not permitted to orally testify or present his own declaration(s) in defense of this matter. In addition, a monetary sanction of $806.30 is awarded to plaintiff from defendant Cohan. 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 5, 2005 Page 8 ______________ *** ITEM 16 03AM01078 PROF. COLLECTION CONSULTANTS VS. LESTER MCQUILLON Nature of Proceeding: MOT TO VAC ERRONEOUSLY FILED ACK OF SATISFACTION OF JUDGMT Filed By: WU, SCOTT D. The motion to vacate an erroneously filed Acknowledgement of Satisfaction of Judgment is granted; opposition was not received by the Court. The Acknowledgment of Satisfaction of Judgment, filed on October 1, 2004, is vacated. 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 17 03AM06652 LAURIE HASKIT VS. TIMOTHY STEELE Nature of Proceeding: Motion To Withdraw Atty of Rec Filed By: PRICE, CHRISTOPHER A. The motion is dropped. Counsel must use Judicial Council Form MC-052, Declaration, as required by C.R.C. rule 376(c). In addition, since it appears the client cannot be located, service of the motion must be made in accordance with C.R.C. rule 376(d), C.C.P.  1001(b) and C.R.C. rule 202.5. *** Department 54 April 5, 2005 Page 9 ______________ ITEM 18 03AM06880 CRDTRS TRADE ASSOC. INC., ET AL VS ABEDELRAZZAG DASS, ET AL Nature of Proceeding: MOTION TO EXPUNGE LIS PENDENS Filed By: CASS, PAUL L. Dropped as the matter was heard on March 9, 2005. *** ITEM 19 03AM11356 CAVALRY PORTFOLIO SERVICES, LLC VS. SUN AHN, ET AL Nature of Proceeding: Summary Judgment Filed By: WINN, BRIAN N. The evidence cited in the separate statement establishes, as undisputed facts, that plaintiff was issued a credit card, became obligated to pay for the cost of goods and services ordered with the card, did not pay the amount owed and there is now due and owing the sum of $17,834.25, plus 10% interest per annum on the unpaid balance from October 25, 2002 in the amount of $4,366.77. The evidence is sufficient to meet plaintiff's burden of showing it is entitled to judgment. Since defendant did not oppose the motion, she has failed to meet her burden of showing either a triable issue of material fact or that plaintiff is not entitled to judgment. The motion for summary judgment is granted. Declaration of Winn, including exhibits 1-3. Plaintiff to submit a judgment for the court's signature no later than Friday, April 8, 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 Department 54 April 5, 2005 Page 10 ______________ *** ITEM 20 04AM06932 WILMOR & SONS PLUMBING & CONST VS. RTI PEX PIPING SYSTEMS, Nature of Proceeding: DEMURRER Filed By: MCNEILL, TIMOTHY C. The general demurrer to the first cause of action for stricts product liability and the second cause of action for negligence is sustained without leave to amend for failure to state facts sufficient to constitute causes of action. Plaintiff alleges the Tools he purchased from defendant's supplier damaged other property; the other property however is not property owned by plaintiff. Plaintiff cannot state theories of liability for damage to property owned by others. The general demurrer to the third cause of action, implied indemnity, is overruled. The allegations are sufficient to show joint and several liability; plaintiff has alleged sufficient facts to show entitlement to indemnity under either a strict liability or negligence theory; and the damages requested are available. Defendant argues plaintiff cannot recover for the cost of the Tools purchased. However, a party cannot demur to a cause of action on the ground part of the damages sought are not recoverable. Fieldstone Co. v Briggs Plumbing Products, Inc. (1997) 54 C.A.4th 357. Defendant to file and serve its answer no later than Friday, April 15, 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 Department 54 April 5, 2005 Page 11 ______________ *** ITEM 21 05CM00016 COLUMBIA CREDIT SERVICES, INC. VS. CHARLEENE NAUGHTON, ETAL Nature of Proceeding: Petition To Confirm Arb Award Filed By: PUGH, JOHN J. The Petition of Columbia Credit Services, Inc. to Confirm the Arbitration Award in the amount of $5,130.54 entered in its favor and against respondent Charleene Naughton is granted; in addition, Petitioner is entitled to interest in the amount of $137.75 (10% rate), costs of $204.60, and reasonable attorney's fees of $520.00. The Court will sign the proposed Judgment submitted by the Petitioner, as modified above. 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 22 05CM00018 COLUMBIA CREDIT SERV., INC. VS. RA,OM ,PFAZA;O. ET AL Nature of Proceeding: Petition To Confirm Arb Award Filed By: PUGH, JOHN J. Columbia Credit Services, Inc.'s Petition to Confirm the Arbitration Award in its favor of $2,371.72 is granted. In addition, interest from the date of the award to April 5, 2005 in the amount of $63.68 (10% rate) is awarded, plus costs of $204.60 and attorney's fees of $520.00. The Court will execute the judgment provided, as modified above. 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 5, 2005 Page 12 ______________ ***