&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 NONE, Bailiff April 7, 2005, 09:00 ITEM 1 00AS06578 JERRY L. ROBERTS VS. PATTY LOMANTO, ET AL. č Nature of Proceeding: Demurrer Filed By: MOSES, JAMES O. Ms. Lomanto alleges she and Mr. Roberts had an agreement under which she became his exclusive leasing agent and he would pay commissions based on leasing activities with third parties or existing tenants. She performed services and he therefore became obligated to pay commissions. He refused to do so and she has been damaged. In opposing Mr. Roberts' motion for summary judgment, Ms. Lomanto stated that she and Mr. Roberts agreed she was owed a commission of $110,000 for the work done on marketing the property, that she earned an additional amount of $238,787.50 thereafter, but she would only seek $170,000 total commissions due to her making an assignment fee as well. Neither the admission, the Court's ruling on Roberts' motion for summary judgment, nor the opinion of the Third District Court of Appeal in Roberts v Lomanto (2003) 112 C.A.3d 1553 preclude Ms. Lomanto from stating a cause of action for breach of contract. The Court in Roberts v Lomanto declined to grant Roberts request that it remand the matter to the trial court with directions that it grant his motion for summary judgment, stating that, as to the commissions, no evidence was disclosed showing that Lomanto's conduct was deliberately deceptive or fraudulent, which was required in order to justify forfeiture of her commission. Roberts, supra, at 1570-1571. This court cannot do so on a demurrer. The general demurrer to the breach of contract cause of action is overruled. The admissions, ruling on the motion for summary judgment and opinion in Roberts v Lomanto do however show that Lomanto cannot state a cause of action for rescission. The allegation is that Lomanto waived her rights to her earned commissions in exchange for Roberts' consent to Lomanto's assignment and payment of an assignment fee. The appeal court and this court ruled that Lomanto breached her fiduciary duty when she obtained Roberts' consent without disclosing the amount of her fee. The rescission by Roberts was therefore proper; Lomanto's purported rescission of her unilateral waiver of her right to the commissions is of no legal consequence. The general demurrer to the rescission cause of action is sustained without leave to amend. Cross-defendants to file and serve their answer(s) to the cross-complaint no later than Monday, April 18, 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 7, 2005 Page 2 ______________ *** ITEM 2 02AS02310 JOSHUA BRANTLEY, ET AL VS. RYLAND HOMES, INC., ET AL Nature of Proceeding: MOTION FOR DETERMINATION OF GOOD FAITH SETTLEMENT Filed By: GORTINSKY, ALEX The Motion that the settlement among plaintiffs, defendants Ryland Homes, Inc. of Northern California, Larchmont Homes and Home Finishes; cross-defendants Leafwood, Inc., Richard Venable, individually and dba Rick's Landscaping, Kenyon Construction, Sierra Sunrise Construction, Inc. and Gold River Mechanical, Inc., is in good faith is unopposed and is 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 3 03AS01344 LINDA KAYE JACKSON VS. CAL DEP OF MOTOR VEHICLES, ET AL Nature of Proceeding: Demurrer Filed By: EURIE, STACY BOULWARE Although not separately organized under the heading "Retaliation", the original complaint contains factual allegations that plaintiff was retaliated against by defendant, thereby making the retaliation cause of action timely. Defendant argues plaintiff's original complaint solely contained legal conclusions of "retaliation", that a retaliation cause of action must be plead with particularity, and that plaintiff's factual assertions do not constitute a retaliation cause of action. The arguments are at odds with the ground on which the demurrer is made, that the retaliation cause of action is barred by the statute of limitations. The demurrer to the second cause of action, retaliation, is overruled. The motion to strike the request for prejudment interest is granted, without leave to amend, pursuant to plaintiff's concession. Defendant to file and serve its answer no later than Monday, April 18, 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 7, 2005 Page 3 ______________ *** ITEM 4 03AS05256 ROY HUGH BUNNELL, ET AL VS. ESKATON PROPERTIES, INC., ET AL Nature of Proceeding: MOT FOR ORDER TO ALLOW HEARING OF MOT FOR SUMMARY JUDGMENT Filed By: LOW, DONNA W. Appearance Required. *** ITEM 5 03AS05256 ROY HUGH BUNNELL, VS. ESKATON PROPERTIES, INC., ET AL. Nature of Proceeding: MT FOR ORD TO ALLW HRG OF MSJ Filed By: LUCAS, JAMES P. Appearance Required. *** ITEM 6 03AS06324 EDWIN X. BERRY VS. ACTIVESOFT TECHNOLOGIES, ET AL Nature of Proceeding: Demurrer Filed By: PHINNEY, THOMAS R. Defendants Phinney and Weintraub Genshlea Chediak Sproul generally demur to the fourteenth, fifteenth and sixteenth causes of action. Defendants argue that although plaintiff alleges they breached a fiduciary duty owed to him, deceived and misled him by convincing plaintiff to do certain things during an arbitration hearing, in reality it was a mediation session and therefore cannot be referred to in the complaint pursuant to Evidence Code  1119. The Court will, as it must, treat the allegations as true for purposes of the demurrer and overrules the general demurrer on this ground. Defendants also argue plaintiff does not allege the agreement he was deceived into executing is enforceable and therefore fails to state a claim. Plaintiff alleges defendants breached their duty to their former client and encouraged him to participate in a contract wich adversely affected his legal rights. As a result he suffered damages of at least $125,193.55. The allegations are sufficient to show damages. Finally, defendants argue the demurrer should be sustained on the ground the claims asserted are unripe and premature since there is an ongoing legal action over the validity of the disputed Agreement. No valid legal authority has been cited that a demurrer can be made on this ground; although defendants ask for a stay in their memorandum of points and authorities, they did not notice a Motion for a Stay. In any event, the demurrer on this ground is overruled; although the parties may request that one matter be tried prior to the other, there is no reason to stay this proceeding. The motion to strike the allegations relating to communications occurring during the course of the "mediation" is denied; see the ruling above. The court notes the reply relies on "facts" which are not part of the pleadings; the Court does not rely on facts stated in the reply memorandum of points and authorities nor has it relied on Exhibit A to plaintiff's opposition. Defendants to file and serve their answer(s) to the Second Amended Complaint no later than Monday, April 18, 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 The special demurrer is based on the argument plaintiff does not allege Department 54 April 7, 2005 Page 4 ______________ *** ITEM 7 04AS00518 PRODIGY HOMES, INC., ET AL. VS. THE SACTO CORNERSTONE GRP, Nature of Proceeding: MOT FOR ORD IMP ISSUEVID SNCTN Filed By: MEREDITH, ADRIENNE M. Defendants Grimes and Cornerstone Group were ordered to serve further responses and responses to Form Interrogatories and Requests for Production of Documents. Defendants did not do so. Plaintiff files its motion seeking issue or evidentiary, and monetary sanctions, for defendants' failure to comply with a court order. Defendants oppose the motion by asserting plaintiff already had all the documents sought by the Request and all the information sought by the Interrogatories, except for Ms. Grimes residence address. The opposition also attempts to respond to the order of the Court by asserting unverified answers and responses, again not complying with the order of the Court. The request for an evidentiary sanction is granted: Defendants are prohibited from introducing any documentary evidence in support of their defense case-in-chief. In addition, a monetary sanction of $3381.30 is awarded to plaintiff from defendant's counsel. 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 7, 2005 Page 5 ______________ ITEM 8 04AS00966 UNION BANK OF CALIFORNIA, NA VS. ANCHOR GROUP, ET AL Nature of Proceeding: MOTION FOR INTERIM FEES Filed By: ROBINSON, WILLIAM E. Having reviewed the papers in support of and in opposition to the request for interim fees, the motion is granted; interim fees of $125,000 are granted, as compromised in the reply papers. 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 9 04AS02120 RIVER KNOLLS L P, ET AL. VS. LAWRENCE EDWARD DEANE, ET AL. Nature of Proceeding: MOTION TO VACATE TRIAL Filed By: ARTHOFER, KENNETH B. The motion to vacate the trial date is granted; good cause having been shown by the fact A.C.Framers, Inc. only recently appeared in the case as a cross-defendant. Its motion for a protective order to stay discovery for thirty days until it obtains previous discovery responses and pleadings and to re-open discovery based on a new trial date is also granted. The mandatory settlement conference scheduled for April 13, 2005, is also vacated. Plaintiff's argument that the cross-complaint can be severed is rejected. Plaintiffs also argue that A.C. Framers was served December 28, could have appeared and obtained discovery prior to the trial setting conference on February 7, 2005. If A.C. had appeared by late January, 2005, the trial date, in all probability, would have been set later than April 26, 2005, to accommodate A.C.'s recent appearance in the action. C.R.C. rule 375. A.C. Framers is directed to pay the $110 continuance fee no later than Friday, April 14, 2005. Government Code  26830(d). The parties to appear in department 47 on Monday, May 2, 2004 at 10:00 a.m. for a trial setting conference. The request to stay the entire action for sixty days due to the liquidation of one of A.C.'s insurance carriers 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 7, 2005 Page 6 ______________ *** ITEM 10 04AS03098 CHRISTINE JENSEN VS. JAGBIR SINGH Nature of Proceeding: Summary Judgment Filed By: BARNES, WILLIAM E. Plaintiff moves for summary judgment, stating she loaned defendant Singh $33,000 on January 6, 2004; it was to be repaid within 90 days; it was not repaid and she is therefore entitled to judgment for that amount. In support of her motion, plaintiff also attaches an order of the Court deeming Admissions admitted. Defendant opposes the motion, stating the loan, made January 6, 2004, was not to him but was to Northern Sierra Group LLC and was an investment; it was never his intention or understanding that he would be personally liable on the loan; moreover, the "Loan Agreement" was faxed to him on March 12, 2004, with plaintiff explaining she wanted it for tax purposes only. Finally, defendant states the parties agreed to settle this matter. The motion for summary judgment is granted; the Admissions are binding on defendant. C.C.P.  2033(n). Defendant did not move to have the Admissions Withdrawn, as permitted by C.C.P.  2033(m). Plaintiff's request to recover expenses incurred in proving matters not admitted is denied. Plaintiff's objections to memorandum of points and authorities and separate statement are not ruled on as the court only rules on objections to evidence. Plaintiff's objections to Singh declaration: sustained as to paragraphs 2, 3, 4 and 5. Declarations of Barnes, Jensen and Singh. 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 7, 2005 Page 7 ______________ *** ITEM 11 04AS03810 BARRY KUNKEL VS. NABIL H. JOUDEH, ET AL Nature of Proceeding: Motion To Compel Filed By: LONG, JEFFREY C. Plaintiff's motion is granted; opposition was not received by the Court. Defendant is ordered to serve further, verified responses, without objections, to Plaintiff's Request for Production of Documents, set one, ##7 and 8, no later than Monday, April 18, 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 12 05AS00056 ERICA H. SETNESS VS. STEVEN EUGENE HAMILTON Nature of Proceeding: Motion To Quash Service Summon Filed By: KALTENBACH, JOHN J. Defendant Hamilton moves to quash service of summons and complaint. His declaration states he was not personally served. The process server's declaration states she personally served him. Ms. Gartman states she talked to defendant's insurance adjuster who, when informed his insured had been served, replied "You're (expletive) me...I just talked to him about a week ago and he didn't say anything about being served." The evidence bolsters Mr. Hamilton's statement he was not personally served; the Court cannot think of a reason why Mr. Hamilton would be talking to his insurance company and yet not mention he had been served unless he, in fact, had not been served. The motion to quash is granted. 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 7, 2005 Page 8 ______________ *** ITEM 13 05CS00220 IN RE: KELLIE J. WRIGHT Nature of Proceeding: Petition For Change Of Name Filed By: WRIGHT, KELLIE J. The Petition for Change of Name is granted. *** ITEM 14 04ED49114 STATE OF CALIFORNIA, ET AL VS. WILL T. DAVIS Nature of Proceeding: CLAIM OF EXEMPTION Filed By: KURTTILA, J. The claim of exemption is denied. The claim of exemption is based on the fact that the earnings of the judgment debtor are needed for his/her support or the support of his/her family. An exemption on that ground is not available since the underlying judgment is for a debt incurred for the common necessaries of life. Unemployment Insurance wrongfully obtained is presumed to be used for the common necessaries of life. However, the judgment creditor is willing to accept a lesser amount than it is entitled to garnish. The Sheriff is therefore directed to garnish $150 per pay period from the judgment debtor's earnings and return to the judgment debtor any amount it is holding greater than $300. *** ITEM 15 05CM00012 CHASE MANHATTAN BANK, USA VS. LEONORE E. SALAZAR Nature of Proceeding: Petition To Confirm Arb Award Filed By: WONG, MITCHELL L. The Petition to Confirm the Arbitration Award of $19,049.90 made in favor of petitioner is granted; in addition Petitioner is awarded interest in the amount of $257.45 and costs of $165.30. Plaintiff's proposed Judgment seeks attorney's fees although such was not requested in the Petition nor is there any evidence to support the request. Plaintiff to seek attorney's fees pursuant to C.R.C. rule 870.2. 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 7, 2005 Page 9 ______________ ***