&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 AMOčUNTS 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 12, 2005, 02:00 ITEM 1 02AS01069 DIVESH SINGH VS. US ELEVATOR, ET AL Nature of Proceeding: MOTION TO COMPEL Filed By: LUGER, ALLEN MAX Plaintiff's Motion to Compel Further Responses to Requests for Admission Nos. 1 -12 of the 2nd set, and Form Interrogatories, Set 3, No. 17.1 (relating to the RFAs) from defendant Thyssenkrupp Elevator Corporation is granted. Sanctions are denied because the motion was not opposed. Although CRC 341 purports to authorize sanctions if the motion is unopposed, the Court declines to do so, as the specific statutes governing this discovery (CCP 2030(l), 2033(l)) authorize sanctions only if the motion was unsuccessfully made or opposed. Any order imposing sanctions under the CRC must conform to the conditions of one or more of the statutes authorizing sanctions. Trans-Action Commercial Investors, Ltd. v Firmaterr Inc. (1997) 60 Cal.App.4th 352, 355. The minute order is effective immediately. No formal order or further notice is required, the tentative ruling providing sufficient notice. Department 53 April 12, 2005 Page 2 ______________ *** ITEM 2 02AS05849 PEOPLE OF THE STATE OF CA,ETAL VS. DERIVIUM CAPITAL, LLC.ETA Nature of Proceeding: Summary Judgment Filed By: BARNES, WILLIE R. Continued to 05/02/2005 *** ITEM 3 04AS00639 SFC LEASING, LP, ET AL VS. ANTHONY K. BARBARIA, ET AL Nature of Proceeding: MOTION TO SET ASIDE DEFAULT Filed By: PEDERSEN, BRETT Defendant Anthony K. Barbaria and Illona Barbaria's Motion to Set Aside Default and Default judgment is denied. The defendants contend that they acted with excusable neglect in failing to obey their discovery obligations and the court's discovery orders, and in failing to oppose the motion for terminating sanctions. Defendants' points and authorities are replete with irrelevant authority (e.g. extrinsic fraud, attorney positive misconduct when they had no attorney) and fail to relate any pertinent facts to the cited authority. The declarations do not establish excusable neglect. The fact that they were acting in pro per and could not find an attorney to represent them does not excuse their failure to obey the court orders. Their vague assertion that they did not receive their mail "most of the time" is not credible. Plaintiff's request for judicial notice is granted. The minute order is effective immediately. No formal order or further notice is required, the tentative ruling providing sufficient notice. *** ITEM 4 04AS01091 EGIDIO "JOE" DANTI, ET. AL. VS. ARDEN REHAB & HEALTH CARE Nature of Proceeding: Motion To Compel Filed By: RHOADES, KATHLEEN M. Dropped. Department 53 April 12, 2005 Page 3 ______________ *** ITEM 5 04AS01297 PALLADIUM PROPERTY GROUP,INC. VS. ROLAND A. TORRES, ET AL Nature of Proceeding: Demurrer Filed By: LATINI, JOHN M. Dropped. *** ITEM 6 04AS01449 BRENDA MAGNUSON VS. POSITIVE RETURN, INC. Nature of Proceeding: Motion To Compel Filed By: LEONARD, SHERI L. Plaintiff's Motion to Compel Further Responses to Special Interrogatories and Requests for Production is granted. As for the requests for production, if defendant claims a privilege, a privilege log must be produced. Compliance to be without objections on or before May 1, 2005. Sanctions are denied as the motion was unopposed. The minute order is effective immediately. No formal order is required, however plaintiff shall mail a copy of the minute order to defendant forthwith. *** ITEM 7 04AS01791 DENISE BOURI VS. MARGARET L. FU, ET AL Nature of Proceeding: Motion TO File Cross Complaint Filed By: PERITORE, MICHAEL A. Defendant's Motion to File Cross-complaint and to Amend Answer is unopposed and is granted. Defendant to file and serve proposed pleadings on or before April 22, 2005. The minute order is effective immediately. No formal order or further notice is required, the tentative ruling providing sufficient notice. Department 53 April 12, 2005 Page 4 ______________ *** ITEM 8 04AS02041 DENISE CARRUTH VS. POSITIVE RETURNS, INC. Nature of Proceeding: Motion To Compel Filed By: LEONARD, SHERI L. Plaintiff's Motion to Compel Further Responses to Special Interrogatories and Requests for Production is granted. As for the requests for production, if defendant claims a privilege, a privilege log must be produced. Compliance to be without objections on or before May 1, 2005. Sanctions are denied as the motion was unopposed. The minute order is effective immediately. No formal order is required, however plaintiff shall mail a copy of the minute order to defendant forthwith. *** ITEM 9 04AS02043 DEBORAH MCKINNON VS. OTIS ELEVATOR COMPANY, ET AL Nature of Proceeding: DEMURRER (DL HOWE ARDEN) Filed By: HEIN, CLINTON S. The Demurrer of Defendants DL Howe Arden LLC and Landmark Asset Management to Plaintiff's First Amended Complaint is OVERRULED. Defendants' Request for Judicial Notice is GRANTED. Plaintiff's Request for Judicial Notice is DENIED. A party requesting judicial notice of material under Evidence Code sections 452 or 453 shall provide the court and each party with a copy of the material. C.R.C., Rule 323(b). The Court also declines to consider the plaintiff Deborah McKinnon's Declaration, as only the complaint and judicially noticeable materials, not extrinsic facts may be considered on demurrer. The purpose of a general demurrer is to determine the sufficiency of the complaint and the court should only rule on matters disclosed in that pleading. Ion Equipment Corp. v. Nelson (1980) 110 Cal. App. 3d 868, 881. Defendants DL Howe Arden LLC and Landmark Asset Management demur to the entire form First Amended Complaint on the grounds that it is barred by Labor Code section 3853. Plaintiff alleges injuries sustained in a workplace accident on May 24, 2002. A prior action was filed by the subrogating insurer for plaintiff's employer on May 23, 2003, naming Otis Elevator as the sole defendant, which action was dismissed on April 2, 2004. Plaintiff failed to file suit prior to April 2, 2004, and did not file until May 21, 2004, thus defendants contend that plaintiff's suit is barred by Labor Code section 3853. A previous demurrer by Otis Elevator to the original complaint in this action was sustained on January 18, 2005. Plaintiff was permitted leave to amend to allege that she had no notice of the prior suit. The only new matter in the amended pleading is the allegation that the parties to the prior action failed to comply with the requirements of Labor Code sections 3853, 3859 and 3860 as to plaintiff. California law permits only one suit against a third party defendant for a workplace accident. The injured worker is required to join the employer's suit if the employer files first. The Labor Code statutes attempt to insure that in either case, single or joint plaintiffs, there results but the one total action, and the defendant is put to his defense but once with the totality of recovery for his tortfeasance at issue. County of San Diego v. Sanfax Corp. (1977) 19 Cal. 3d 862, 873 Labor Code section 3853 provides: "If the action is brought by either the employer or employee, the other may, at any time before trial on the facts, join as party plaintiff or shall consolidate his action, if brought independently." As plaintiff brought her action independently, consolidation is mandatory. Although plaintiff has alleged that "parties" did not serve the prior suit on her, plaintiff has not alleged that her failure to timely join or file her suit was due to lack of notice of the prior suit. However, the prior suit did not name as defendants DL Howe Arden LC and Landmark Asset Management, but only Otis Elevator. The Court is not persuaded that plaintiff's amended complaint fails to state a cause of action against these defendants. Defendants shall file and serve their answer to the First Amended Complaint not later than Friday, April 22, 2005. This minute order is effective immediately. No formal order nor further notice is required, the tentative ruling providing sufficient notice. 2043203 Department 53 April 12, 2005 Page 5 ______________ *** ITEM 10 04AS02043 DEBORAH MCKINNON VS. OTIS ELEVATOR COMPANY, ET AL Nature of Proceeding: DEMURRER (OTIS ELEVATOR) Filed By: HEIN, CLINTON S. The Demurrer of Defendant Otis Elevator to Plaintiff's First Amended Complaint is SUSTAINED, without leave to amend. Defendant's Request for Judicial Notice is GRANTED. Plaintiff's Request for Judicial Notice is DENIED. A party requesting judicial notice of material under Evidence Code sections 452 or 453 shall provide the court and each party with a copy of the material. C.R.C., Rule 323(b). The Court also declines to consider the plaintiff Deborah McKinnon's Declaration, as only the complaint and judicially noticeable materials, not extrinsic facts may be considered on demurrer. The purpose of a general demurrer is to determine the sufficiency of the complaint and the court should only rule on matters disclosed in that pleading. Ion Equipment Corp. v. Nelson (1980) 110 Cal. App. 3d 868, 881. Defendant Otis Elevator demurs to the entire form First Amended Complaint on the grounds that it is barred by Labor Code section 3853. Plaintiff alleges injuries sustained in a workplace accident on May 24, 2002. A prior action was filed by the subrogating insurer for plaintiff's employer on May 23, 2003, naming Otis Elevator and was dismissed on April 2, 2004. Plaintiff failed to file suit prior to April 2, 2004, and did not file until May 21, 2004, and is therefore barred by Labor Code section 3853. A previous demurrer to the original complaint in this action was sustained on January 18, 2005. Plaintiff was permitted leave to amend to allege that she had no notice of the prior suit. The only new matter in the amended pleading is the allegation that the parties to the prior action failed to comply with the requirements of Labor Code sections 3853, 3859 and 3860 as to plaintiff. California law permits only one suit against a third party defendant for a workplace accident. The injured worker is required to join the employer's suit if the employer files first. The Labor Code statutes attempt to insure that in either case, single or joint plaintiffs, there results but the one total action, and the defendant is put to his defense but once with the totality of recovery for his tortfeasance at issue. County of San Diego v. Sanfax Corp. (1977) 19 Cal. 3d 862, 873 Labor Code section 3853 provides: "If the action is brought by either the employer or employee, the other may, at any time before trial on the facts, join as party plaintiff or shall consolidate his action, if brought independently." As plaintiff brought her action independently, consolidation is mandatory. Although plaintiff has alleged that "parties" did not serve the prior suit on her, plaintiff has not alleged that her failure to timely join or file her suit was due to lack of notice of the prior suit. The plaintiff's amended complaint therefore fails to state a cause of action. Defendant shall submit a formal order and judgment of dismissal. 2043203 Department 53 April 12, 2005 Page 6 ______________ *** ITEM 11 04AS03131 NICK STRICKLAND, ET AL VS. PINNACLE REALTY MGMNT. CO.,ETAL Nature of Proceeding: Motion To Compel Filed By: SCHNACK, ROBERT J. Defendant Pinnacle Realty Management Company and Rob Role's Motion for Order Compelling Further Response to Special Interrogatory #1 from plaintiff Jilliam Del Soldato is granted. The response "unknown, discovery is continuing" is insufficient. Sanctions are denied because the motion was not opposed. Although CRC 341 purports to authorize sanctions if the motion is unopposed, the Court declines to do so, as the specific statutes governing this discovery (CCP 2030k, 2031(l)) authorize sanctions only if the motion was unsuccessfully made or opposed. Any order imposing sanctions under the CRC must conform to the conditions of one or more of the statutes authorizing sanctions. Trans-Action Commercial Investors, Ltd. v Firmaterr Inc. (1997) 60 Cal.App.4th 352, 355. The minute order is effective immediately. No formal order or further notice is required, the tentative ruling providing sufficient notice. *** ITEM 12 04AS03929 RICHARD HAMM VS. BRIAN S. BARRAD Nature of Proceeding: SPECIAL MOTION TO STRIKE Filed By: NOCELLA, CAROLYNNE J. Defendants Troung and Holley's (served as Does 1 and 2) Special Motion to Strike plaintiff Hamm's Complaint is GRANTED. Code of Civil Procedure section 425.16. Defendants' Request for Judicial Notice is GRANTED. The Court rules on Defendants' Evidentiary Objections as follows: objections nos. 1 -4 are SUSTAINED Plaintiff in pro per's complaint alleges causes of action against co-defendant Berrad and the moving party defendants Troung and Holley for abuse of process, subornation of perjury, conspiracy, intentional infliction of emotional distress and negligent infliction of emotional distress for improperly initiating, filing and prosecuting the underlying legal malpractice action, Benjach v. Hamm, and a complaint against Hamm to the State Bar of California. Attorneys Troung and Holley represented plaintiff Tanomrat in two separate actions in Santa Clara County against defendants Nguen and Benjach, who were represented by attorney Hamm. A judgment was entered in the first Tanomrat case in favor of plaintiff and against Hamm's clients in the amount of $485,000. In Tanomrat Two, all parties were again represented by the same counsel. While the second case was pending, defendant Benjach, after dismissing Hamm as his counsel, met with Troung and Holley. Troung and Holley discussed with Benjach a resolution of all Tanomrat claims and judgments against him. Benjach also asked them to represent him in a legal malpractice suit against Hamm. Defendants Troung and Holley declined to represent Benjach against Hamm, but provided him with a reference to co-defendant Barrad to file a legal malpractice action. A legal malpractice action was filed against Hamm by co-defendant Barrad, with the cooperation of Troung and Holley. That action was subsequently dismissed on summary judgment. Code of Civil Procedure section 425.16(b)(1) provides that "a cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." An act "in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue" includes: any written or oral statement or writing made before a judicial proceeding, or any other official proceeding authorized by law. Code of Civil Procedure section 425.16(e)(1). Thus the actions complained of by plaintiff may arise from protected activity. However, the moving defendants' burden to show "a cause of action arising from" is not met simply by showing that the label of the lawsuit appears to involve the rights of free speech or petition; they must demonstrate that the substance of the plaintiff's cause of action was an act in furtherance of the right of petition or free speech. Jespersen v. Zubiate-Beauchamp (2003) 114 Cal. App. 4th 624, 630. Here, the referral to Barrad to file a legal malpractice against Hamm appears to be an act in furtherance of the right of petition. Similarly, the complaint to the State Bar is also. Therefore, the burden shifts to plaintiff to prove that he will probably prevail on the merits. If plaintiff cannot meet that burden, the complaint will be stricken. Plaintiff's evidence in opposition is limited to a declaration by Hamm and attaching one signed by Benjach in 2003. Both declarations are hearsay. Further, plaintiff has submitted no other evidence to support the necessary elements of each cause of action. In order to establish a cause of action for malicious prosecution of either a criminal or civil proceeding, a plaintiff must demonstrate that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff's favor; (2) was brought without probable cause; and (3) was initiated with malice. Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal. 3d 863, 871. Plaintiff cannot establish, by admissible evidence, that Troung and Holley represented Benjach in the legal malpractice action, Hamm has not established that it was commenced by or at the direction of the defendant and was pursued to a legal termination in Hamm's favor. The entry of summary judgment for the defense on an underlying claim on grounds of insufficient evidence does not establish as a matter of law that the litigant necessarily can state and substantiate a subsequent malicious prosecution claim. Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal. 4th 728, 742. The elements of that the action was brought without probable cause; and was initiated with malice have not been addressed. Defendants further assert the privilege of Civil Code section 47(b), for prelitigation communications. But Civil Code section 47, subdivision 2, does not apply to every action in which a privileged communication may provide some element of the tort. Thus, the fact that 'a communication may be absolutely privileged for the purposes of a defamation action does not prevent its being an element of an action for malicious prosecution in a proper case. Block v. Sacramento Clinical Labs (1982) 131 Cal. App. 3d 386, 392, citing Brody v. Montalbano (1978) 87 Cal. App. 3d 725, 736. However, as plaintiff has failed to make a showing as to the requirements of favorable termination, lack of probable cause, thus failing to show that he will prevail on the merits, the Court need not address the issue of privilege. The Motion to Strike is GRANTED. The request for an award of attorneys' fees must be brought by separate noticed motion, with supporting evidence. The court will exercise its discretion and its own independent judgment to determine the reasonable value of the services. Defendants shall submit a formal order and judgment of dismissal. 3929203 Department 53 April 12, 2005 Page 7 ______________ *** ITEM 13 05CS00197 IN RE: NILOUFAR SOLTANI Nature of Proceeding: PETITION FOR CHANGE OF NAME Filed By: SOLTANI, NILOUFAR Petition for Name and Gender Change is granted. *** ITEM 14 05CS00207 IN RE: JODENE MATALONE Nature of Proceeding: Petition For Change Of Name Filed By: MATOLONE, JODENE Petition for Name Change will be granted on condition petitioner file before the time of the hearing a supplemental declaration that complies with CCP 2015.5 and which attaches a copy of the family court order granting her full legal and physical custody of the child. *** ITEM 15 05CS00209 IN RE: LATORIA RENEE CLARK Nature of Proceeding: Petition For Change Of Name Filed By: CLARK, LATORIA Petition for Name Change is denied without prejudice. There is no proof of publication. In addition, petitioner is required to personally serve the father with the petition 30 days before the hearing. CCP 1277. Petitioner has not given a sufficient explanation why she should not have to serve the father of her 5 month old son. The fact that he does not help her or that the child has lived with her since he was born are not sufficient reasons. *** ITEM 16 05CS00213 IN RE: DAVID DEAN HERRERA Nature of Proceeding: Petition For Change Of Name Filed By: HERRERA, DAVID Petition for Name Change is granted. Department 53 April 12, 2005 Page 8 ______________ *** ITEM 17 05CS00221 IN RE: ALEXANDRIA JONES Nature of Proceeding: Petition For Change Of Name Filed By: JONES, ALEXANDRIA Petition for Name Change is granted on condition petitioner file a supplemental declaration in Department 53 before the hearing setting forth facts to support her contention that she is the "sole legal parent." Petitioner may attach a custody order or declaration explaining why the name and address of the father is unknown. *** ITEM 18 05CS00227 IN RE: HOLLY ANN LAWRENCE Nature of Proceeding: Petition For Change Of Name Filed By: LAWRENCE, HOLLY Petition for Name Change is denied. The petition must be filed in the County of petitioner's residence and is therefore dismissed. Petitioner states she lives in Stockton, which is not in Sacramento County. CCP 1277(a). *** ITEM 19 05CS00235 IN RE: APRIL LEYVA, ET AL. Nature of Proceeding: Petition For Change Of Name Filed By: LEYVA, APRIL Petition for Name Change is granted. *** ITEM 20 05CS00237 IN RE: RAFAEL GLENN BUTLER Nature of Proceeding: Petition For Change Of Name Filed By: BUTLER, RAFAEL Petition for Name Change is granted. Department 53 April 12, 2005 Page 9 ______________ *** ITEM 21 05CS00245 IN RE: EMMA AGUILAR LOPEZ Nature of Proceeding: Petition For Change Of Name Filed By: LOPEZ, EMMA Petiion for name change is granted. *** ITEM 22 05CS00297 ELI FRANK, ET AL VS. KAT CONSTRUCTION, INC. Nature of Proceeding: PET RELEASE FROM MECH LIEN Filed By: FERRIS, FRANK J. Petition for Release of Mechanic's Lien is unopposed and is granted. Petitioner to prepare formal order pursuant to CRC 391. *** ITEM 23 03AM03107 STATES RECOVERY SYSTEMS, INC. VS. JOSEPH A. BOWMAN, ET AL Nature of Proceeding: Default Hearing Filed By: WILKINSON, TROY M. Dropped. Dropped from calendar on the court's own motion because there is no proof of mailing of the request for judgment hearing. The only proof of service was for the request for judgment one year ago that was rejected by the court for insufficient evidence to establish commercial reasonableness in selling the car for 48% of Blue Book value. *** ITEM 24 04AM01209 HOWARD EARL SANKEY VS. TERRENCE PATRICK O'NEILL, ET AL Nature of Proceeding: Motion To Compel Filed By: BERTA, JOHANNA M. Dropped. Department 53 April 12, 2005 Page 10 ______________ *** ITEM 25 04AM04443 CAVALRY PORTFOLIO SERVICES VS. WAYLIN CARPENTER, ET AL Nature of Proceeding: CLAIM OF EXEMPTION Filed By: WINN, BRIAN N. Claim of exemption is denied. The funds are not tools of the trade and there is no financial statement in support of the claim that the funds are necessary for support of the debtor. Moreover, since this is a bank levy, judgment debtor's burden is to trace the funds in the bank account to wages paid to him within the last 30 days. Judgment debtor has not provided the relevant bank records. *** ITEM 26 04AM05463 DAG FINANCIAL TRUST VS. TANYA LANDON Nature of Proceeding: CLAIM OF EXEMPTION Filed By: LOEB, STEVEN S. Continued to this date from April 5 for oral argument. *** ITEM 27 04ED31015 STATE OF CALIFORNIA, ET AL VS. ADRIONNA E. SMARTT Nature of Proceeding: CLAIM OF EXEMPTION Filed By: MCLAUGHLIN, L. Claim of exemption is denied. The levying officer is ordered to withhold $120 per pay period, up to $240 per month. Any amounts being retained in excess thereof are to be returned to the judgment debtor. Judgment debtor has not met her burden to establish that her wages are already being garnished in the maximum allowable amount (25% of net wages.) Since it is judgment debtor's burden to establish entitlement to exemption, debtor is required to provide supporting documentation as to the entry "accidental life/garnishment" of $568. It is not clear whether she is referring to this garnishment or another garnishment. Judgment debtor is not entitled to an exemption for the necessities of life if the underlying judgment is for the necessities of life. CCP 706.051(c)(1). Department 53 April 12, 2005 Page 11 ______________ *** ITEM 28 05AM01355 ECONOMY FOODS, INC., ET AL VS. FRANK ROMPAL JR., ET AL Nature of Proceeding: Writ Of Attachment Filed By: COOK, DAVID J. Application for Writ of Attachment is unopposed and is granted in the amount of $19,812.40 on condition proof of service of the summons and complaint is filed with the court before the time of the hearing. The only documents listed on the proof of service were the application and supporting documents. If the application is granted, it is on condition a $10,000 bond is posted. Moving party to provide a formal order on the judicial council form. *** ITEM 29 98AM04573 DYNAMIC ROOFING CO, INC., ET AL VS. BELLA HOMES, INC., ET AL Nature of Proceeding: MOTION TO SET ASIDE VOID JUDGMENTS Filed By: ENSMINGER, D. RANDALL Defendant David Romo's Motion to Set Aside Void Judgments is DROPPED from the Court's calendar. Plaintiff's Request for Judicial Notice is GRANTED. A default judgment was entered against moving defendant David Romo on February 2, 1999, following terminating sanctions imposed on David Romo and co-defendants for their failure to comply with Court orders to respond to discovery requests. The original judgment awarded attorneys' fees against co-defendants Bella Homes, Inc. but not against David Romo personally. In 2004, additional discovery was served on David Romo, including a request that he admit that Bella Homes, Inc. is his alter ego. He failed to respond, and on June 24, 2004 this court ordered that the requests for admissions be deemed admitted. Plaintiff moved to add post-judgment attorneys' fees to the default judgment against David Romo, as he is liable for the obligations of his alter ego, Bella Homes, Inc. The moving papers were served on David Romo, and he did not respond. The court entered an order that Bella Homes, Inc. was David Romo's alter ego. On Oct. 25, 2004 and November 22, 2004, the Second and Third Amended Judgments were entered against both Bella Homes, Inc. and David Romo, for the principal sum and the attorneys' fees. A defendant against whom a default has been entered is out of court and is not entitled to take any further steps in the cause affecting plaintiff's right of action; he cannot thereafter, until such default is set aside in a proper proceeding, file pleadings or move for a new trial or demand notice of subsequent proceedings. Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal. App. 3d 381, 385-386. As the entry of default has deprived this Court of jurisdiction to consider any motion other than a motion for relief from default by David Romo, the motion to set aside the amended judgments is dropped from the Court's calendar. This minute order is effective immediately. No formal order nor further notice is required, the tentative ruling providing sufficient notice. 4573203 Department 53 April 12, 2005 Page 12 ______________ ***