&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 AMOUčNTS 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 LOREN E. McMASTER, Judge T. WEST, Clerk V. CARROLL, Bailiff April 8, 2005, 02:00 ITEM 1 02AS06018 KEARNEY CONSTRUCTION VS. PAUL KEARNEY, INC., ET AL Nature of Proceeding: Motion TO File Cross Complaint Filed By: MCNEIL, SOPHIE F. Motion by Defendant Steve Tackett Painting to File Cross-complaint is unopposed and is granted. Cross-complaint to be filed and served on or before April 15, 2005. The minute order is effective immediately. No formal order or further notice is required, the tentative ruling providing sufficient notice. *** ITEM 2 03AS02741 NEHEMIAH PROGRESSIVE HOUSING DEV. VS. DON F. HARRIS, ET AL Nature of Proceeding: MOT GRANTING LEAVE TO TAKE DEP Filed By: EANET, MATT Motion for Leave to take deposition of Dominique Powell is granted. The Court finds that the initial deposition notice for the March 10 date was timely served on February 18, pursuant to CCP 2025(f). Ten days notice was required since there was no consumer records subpoena, which requires 20 days notice to afford the consumer sufficient time to object. Plaintiff is not required to make a showing under CCP 2024(e) to reopen discovery since the deposition was timely noticed before the discovery cut-off. Based on the information on the Giftfind web-site, which defines this witness as the Senior Vice President of Giftfinder, a dba of defendant DPA Process Management Inc., the court finds she is a party affiliated witness whether she is defined as an "independent contractor" or an employee. The failure of any defendant to notify plaintiff's counsel until two days before the hearing that she would not be produced without a subpoena was unreasonable. The parties are ordered to meet and confer in good faith regarding the specifics of the deposition. The minute order is effective immediately. No formal order or further notice is required, the tentative ruling providing sufficient notice. Department 53 April 8, 2005 Page 2 ______________ *** ITEM 3 03AS02741 NEHEMIAH PROGRESSIVE HOUSING DEV. VS. DON F. HARRIS, ET AL Nature of Proceeding: APP TO SEAL PLNTFF REPLY BRIEF Filed By: EISENBERG, JONATHAN M. Application to seal reply brief is denied. However, the clerk shall remove exibit B from the original and the copy of the Reply and place the documents in the envelopes provided by moving party to be retrieved from the clerk by moving party. Despite the parties' protective order, there is nothing confidential about the organizational chart of Invision. Exhibit B is being returned since it is not being considered and is not necessary to the court's determination on the motion to compel deposition. *** ITEM 4 04AS04385 WILLIAM D. TAYLOR, ET AL VS. OMNI CONTRACTORS, INC.ETAL Nature of Proceeding: Motion To Compel Filed By: PERITORE, MICHAEL A. Defendants' Motion to Compel Further Responses to Requests for Production 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16, and 17 is granted. Although plaintiff provided verifications for the responses after the initial responses were served, plaintiff is still required to identify under oath the documents responsive to each category. It is not sufficient to assert objections and then state "defendant already has the documents." As long as plaintiff identifies the documents and clarifies when they were given to defendants, Plaintiff is not required to produce documents that have not already been produced. If Plaintiff does not have documents related to a "remodel" then they should so state rather than object. Sanctions are denied. The minute order is effective immediately. No formal order or further notice is required, the tentative ruling providing sufficient notice. Department 53 April 8, 2005 Page 3 ______________ *** ITEM 5 05AS00395 KEVAN H. GILMAN DBA LIEN MED VS. PHILLIP A. CABE ETAL Nature of Proceeding: Demurrer Filed By: COLE, JONATHAN B. Dropped. *** ITEM 6 05AS00395 KEVAN H. GILMAN DBA LIEN MED VS. PHILLIP A. CABE ETAL Nature of Proceeding: MOTION TO STRIKE Filed By: COLE, JONATHAN B. Dropped. *** ITEM 7 05AS00565 PATRICIA NEELY, ET AL VS. JACQUELINE BLACKBURN, ET AL Nature of Proceeding: Demurrer Filed By: GIGUIERE, MICHELE LOUISE Defendants Blackburn and Avilla's Demurrer to the Complaint is overruled. Plaintiffs allege that after all siblings had been granted an undivided 1/6 interest in the subject property in 1977, defendant forged and recorded a grant deed by which plaintiffs and defendants Holt and Johanson purportedly deeded their interests in the property to defendant Blackburn. Plaintiffs seek cancellation of the 1978 grant deed and related relief. Plaintiffs allege they discovered the fraud in 2004 when defendant tried to sell the property in which each of the siblings had held an interest. The applicable statute of limitations is either CCP 343 (four years) or 338 (three years) from the accrual of the cause of action , which was 2004. The Code sections cited by defendants, CCP 318, and 319, are inapplicable to actions when fraud is alleged: "Ordinarily a suit to set aside and cancel a void instrument is governed by section 343 of the Code of Civil Procedure." ( Zakaessian v. Zakaessian (1945) 70 Cal. App. 2d 721, 725 (cites omitted) The only exception to this rule...would be as and when fraud or mistake were involved, in which case the three-year period of section 338, subdivision (4) would apply. Robertson v Brooks (2001) 90 Cal.App.4th 1319, 1326. Answer to be filed on or before April 18, 2005. The minute order is effective immediately. No formal order or further notice is required, the tentative ruling providing sufficient notice. Department 53 April 8, 2005 Page 4 ______________ *** ITEM 8 02AM04057 LYSSA DAWN BENNETT VS. LEONARDO G. HERNANDEZ Nature of Proceeding: MOTION TO VACATE AND SET ASIDE DISMISSAL Filed By: MIRACCHI, SILVANO Motion for discretionary dismissal is granted. On March 14 the Court put this motion on calendar for this date after vacating the judgment. The court gave the plaintiff the opportunity to file and serve an opposition to the discretionary dismissal motion on or before March 28, 2005. The Court stated that the opposition must be supported by admissible evidence concerning the actions of the attorney assigned the case between December 2002 and July of 2004, including, if necessary, a declaration of Mr. Pack, who appeared to still be employed by the Law Offices of Silvano Miracchi, and a declaration from Mr. Pack's physician. No supplemental opposition has been filed by plaintiff. Plaintiff has failed to file a proposed pleading to cure the default occasioned by failure to oppose the first motion for discretionary dismissal. Plaintiff has not shown diligence in prosecuting the matter between December of 2002 and July of 2004. Thus, discretionary dismissal is warranted. CCP 583.420 CRC 373(e). Defendant to prepare a formal order of dismissal pursuant to CRC 391. *** ITEM 9 03AM09669 SANDBERG FURNITURE VS. RAY SAFRIAN, ET AL Nature of Proceeding: Motion To Compel Filed By: CHAN, PAUL Dropped. The default is not being set aside and defendant has no standing. In any event, the motion to compel defendant's own deposition is nonsensical. *** Department 53 April 8, 2005 Page 5 ______________ ITEM 10 03AM09669 SANDBERG FURNITURE VS. RAY SAFRIAN, ET AL Nature of Proceeding: MOTION TO SET ASIDE DEFAULT Filed By: CHAN, PAUL Motion to Set Aside Default is denied. Defendant Ray Safrian, aka Mohammed Reza Safrian, moves to set aside the default and default judgment pursuant to CCP 473.5 contending he had no actual notice of the proceeding in time to defend it. Defendant also contends he is not the real defendant. The Court is not persuaded that moving party is not the true defendant, that he had no notice, nor that plaintiff did not properly serve him by substituted service. Moving party used the name of Ray Safrian when he applied for credit with plaintiff and told plaintiff that he was the owner of the Furniture Outlet #2 on El Camino. Defendant does not deny that he is the person who applied for credit. Defendant Ray, aka Reza was served at the address of the business that he listed as the business he owned. The signatures on moving party's declaration in support of the motion and the credit application are the same, and his credit report lists both names as belonging to the same person. Regarding the claim of exemption, see minute order dated February 16, 2005, the Sheriff is directed to release the funds to the judgment creditor, since the defendant has not persuaded the court that he is not the correct defendant. The judgment creditor did not levy on the wrong bank account, since judgment debtor's admitted bank account was the one levied upon. The Court will prepare a separate minute order directing the sheriff to release the funds to the judgment creditor. The minute order on this motion is effective immediately. No formal order or further notice is required, the tentative ruling providing sufficient notice. *** ITEM 11 04AM02177 KIM KIEU, ET AL VS. COUNTY OF SACRAMENTO Nature of Proceeding: Motion For Judgment On Pleadin Filed By: HEWITT, SHANAN L. Motion for Judgment on the Pleadings is granted, with leave to amend. Plaintiff alleges that defendant seized $19,916 from plaintiffs' residence during the arrest of Thanh Cong Kieu, and the pleadings reflect that defendant complied with the asset forfeiture statutes by publishing the notice of forfeiture for three weeks, and that plaintiffs did not comply with the statutory timelines because plaintiffs allege they failed to file a claim opposing forfeiture within the 30 days. No facts are alleged in the Complaint to explain why plaintiffs did not timely file their claims nor why they did not seek to set aside the forfeiture once they had notice of it. The plaintiffs' vague allegations of misrepresentation do not excuse compliance with the statutory scheme. However, in opposition to the motion, the plaintiff states that during the period in which the asset forfeiture was being published, a prosecutor made a deal with the criminal defendant that included returning the bulk of the funds seized to the family. Plaintiffs appear to allege that the County should be estopped from arguing that plaintiffs did not follow the forfeiture statutes because the prosecutor told them they would get their money back as part of the plea bargain. Thus, the court cannot say as a matter of law that no cause of action can be stated based on a misrepresentation regarding return of the money to plaintiffs. Plaintiffs may file and serve an Amended Complaint on or before April 18, 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 defendant 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 8, 2005 Page 6 ______________ ***