&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 BRIAN R. VAN CAMP, Judge R. ROUSE, Clerk V. CARROLL, Bailiff April 12, 2005, 09:00 ITEM 1 03AS03188 RICHARD WIGINGTON, ET AL VS. OLD KENT MORTGAGE, ET AL č Nature of Proceeding: MOTION TO COMPEL RICHARD WIGINGTON Filed By: YOO, S. CHRISTOPHER Defendant Ocwen Federal Bank's motion to compel further responses to demand for production of documents is unopposed and is granted to the extent that it seeks further responses. The motion is premature to the extent that it seeks production of documents. CCP section 2031(n) authorizes a motion to compel compliance after a response is filed and inspection in compliance with the response is not permitted. Plaintiff Richard Wigington shall serve further responses, verified and without objection, to demands 20, 24, 25, 26, 27, 28, 29, 30, 39, 41, 42, 43 and 44 no later than April 22, 2005. Sanctions are denied as the motion is unopposed. The minute order is effective immediately. No formal order pursuant to CRC Rule 391 or further notice is required. a *** ITEM 2 03AS03188 RICHARD AND ENOLA WIGINGTON, ET AL. VS. OLD KENT MORTGAGE CO Nature of Proceeding: MOT TO COMP ENOLA WIGINGTON Filed By: YOO, S. CHRISTOPHER Defendant Ocwen Federal Bank's motion to compel further responses to demand for production of documents is unopposed and is granted to the extent that it seeks further responses. The motion is premature to the extent that it seeks production of documents. CCP section 2031(n) authorizes a motion to compel compliance after a response is filed and inspection in compliance with the response is not permitted. Plaintiff Enola Wigington shall serve further responses, verified and without objection, to demands 20, 24, 25, 26, 27, 28, 29, 30, 39, 41, 42, 43 and 44 no later than April 22, 2005. Sanctions are denied as the motion is unopposed. The minute order is effective immediately. No formal order pursuant to CRC Rule 391 or further notice is required. a Department 54 April 12, 2005 Page 2 ______________ *** ITEM 3 03AS03188 RICHARD AND ENOLA WIGINGTON, VS. OLD KENT MORTGAGE COMPANY, Nature of Proceeding: MT TO COMP ROG R. WIGINGTON Filed By: YOO, S. CHRISTOPHER Defendant Ocwen Federal Bank's motion to compel further responses to special interrogatories (set one) is unopposed and is granted. The lack of opposition is deemed a concession of the merit of the motion. Plaintiff Richard Wigington shall serve further responses, verified and without objection, to interrogatory nos. 4, 7, 10, 13, 16, 19, 22, 25, 28, 31, 34, 37, 40, 43, 46, 49, 52, 55, 58, 61, 64, 67, 70, 73, 76, 79, 82, 85, 88, 91, 93, 96 and 97 no later than April 22, 2005. Sanctions are denied as the motion is unopposed. The minute order is effective immediately. No formal order pursuant to CRC Rule 391 or further notice is required. a *** ITEM 4 03AS03188 RICHARD AND ENOLA WIGINGTON, VS. OLD KENT MORTGAGE COMPANY, Nature of Proceeding: MT TO COMP ROG ENOLA WIGINGTON Filed By: YOO, S. CHRISTOPHER Defendant Ocwen Federal Bank's motion to compel responses and further responses to special interrogatories (set one) is unopposed and is granted. The lack of opposition is deemed a concession of the merit of the motion. Plaintiff Enola Wigington shall serve further responses, verified and without objection, to interrogatory nos. 4, 7, 10, 13, 16, 19, 22, 25, 28, 31, 34, 40, 43, 46, 49, 52, 55, 58, 61, 64, 67, 70, 73, 76, 82, 85, 88, 91, 93, 96 and 97 and responses to nos. 98 and 99 no later than April 22, 2005. Sanctions are denied as the motion is unopposed. The minute order is effective immediately. No formal order pursuant to CRC Rule 391 or further notice is required. a *** Department 54 April 12, 2005 Page 3 ______________ ITEM 5 03AS04521 GARY ERVIN VS. KISTEN CLEMENTS WYMORE, ET AL Nature of Proceeding: MOTION TO RECUSE COUNSEL Filed By: ERVIN, GARY Plaintiff's motion to recuse counsel for defendants is denied. The moving papers do not establish grounds for recusal. Younger v. Solomon (1974) 38 Cal.App.3d 289 is inapposite. There, summary judgment was reversed on the ground that disclosure of a complaint to the State Bar was not privileged under the facts of that case. No issue concerning recusal of counsel was raised or addressed. Defendants object that the motion may be untimely based on plaintiff's failure to attach a proof of service to the moving papers that were served on defendant, and the date defendant received the papers. According to the proof of service attached to the moving papers that were filed with the court, the papers were personally served on March 18, 2005, which complies with CCP section 1005. However, the practice of not attaching a proof of service to papers served on defendant cannot be countenanced. At a minimum, it is a denial of due process and improper ex parte communication to file papers with the court that were not served on all parties. In the future, failure to attach a proof of service to papers served on opposing parties may, in the Court's discretion, be grounds to reject any proof of service attached to papers filed with the Court as an improper ex parte communication. The minute order is effective immediately. No formal order pursuant to CRC Rule 391 or further notice is required. a *** ITEM 6 03AS04820 JOSEPH MOHAMED, SR., ET AL VS. WESTERN PAC HSG, INC., ET AL Nature of Proceeding: Demurrer Filed By: WOODWARD, ARTHUR G. Dropped. Department 54 April 12, 2005 Page 4 ______________ *** ITEM 7 03AS05196 TIM ROMER VS. MERCY SAN JUAN MEDICAL CENTER, ET AL Nature of Proceeding: Motion To File Amended Complai Filed By: WITTE, THOMAS M. Plaintiff's motion to amend complaint to add name of Doe defendant is unopposed and is granted. The amended complaint may be filed no later than April 22, 2005. The minute order is effective immediately. No formal order pursuant to CRC Rule 391 or further notice is required. a *** ITEM 8 04AS00148 SHIRLEY JEAN MCNEALEY VS. RICHARD MORGAN JENSMA, ET AL Nature of Proceeding: Demurrer Filed By: SWANSON, PALMER J. Defendants Farmers Insurance Exchange and Fire Insurance Exchange's demurrer to the complaint is sustained with leave to amend for failure to state a cause of action. The complaint fails to set forth facts that would support any theory of liability against demurring defendants. Plaintiff may file and serve an amended complaint no later than April 22, 2005. The minute order is effective immediately. No formal order pursuant to CRC Rule 391 or further notice is required. a *** ITEM 9 04AS01742 UNITED STATES FIRE INS CO VS. POLLY ESTHER'S OF SAC, ET AL Nature of Proceeding: MOTION TO STAY PROCEEDINGS Filed By: CELNIKER, ELIZABETH B. Continued to 05/12/2005 Department 54 April 12, 2005 Page 5 ______________ *** ITEM 10 04AS01742 UNITED STATES FIRE INSURANCE COMPANY, VS. POLLY ESTHER'S Nature of Proceeding: MT FOR APPR OF CONSENT TO STL Filed By: FIELD, SUSAN J. Plaintiff's motion for approval of defendant Polly Esther's consent to settlement is unopposed and is granted for good cause shown. The Court will sign the formal order submitted with the moving papers. a *** ITEM 11 04AS04710 ANNE DE PAUL, ET AL VS. CASA COLOMA, LLC, ET AL Nature of Proceeding: Demurrer Filed By: DUBIN, MICHAEL A. Defendants Casa Coloma, LLC and ABCD Associates' demurrers are sustained/overruled as follows: Entire complaint on the ground of failure to file appropriate declarations: overruled. The declaration of Thomas De Paul was filed on November 15, 2004. First cause of action for elder abuse: sustained with leave to amend for failure to state a cause of action. The complaint alleges that plaintiff's decedent, who had a history of choking and required assistance with eating, was left unattended for approximately two and one-half hours during which time she choked on a piece of food, ultimately resulting in her death. Plaintiff also alleges that defendants' facility was deliberately and chronically understaffed and that the facility had received numerous notices of deficiencies. However, as the choking incident occurred more than two years after Anne De Paul had been admitted to the facility, and no other incidents of neglect are alleged, plaintiff has not shown a nexus between the alleged understaffing and the death of the death of Anne De Paul. The facts alleged do not show a "subjective state of culpability greater than simple negligence." Mack v. Soung (2000) 80 Cal.App.4th 966, 972. Second cause of action for fraud: sustained with leave to amend for failure to state a cause of action. The complaint alleges that the facility director told plaintiff that the facility was well-run, and concealed the receipt of numerous notices of deficiencies. As Anne De Paul was admitted in 2001, the receipt of notice of deficiencies in 2002, 2003 and 2004 are not relevant to this cause of action as they cannot have induced plaintiff's reliance. The alleged receipt of 25 notices of deficiencies in 2001 may show concealment, but only if they were issued and known to the facilty director prior to Anne De Paul's admission. However, the complaint does not set forth the date of admission and the dates of the notices of deficiencies so that the Court can infer such knowledge. Third cause of action for violation of the California Consumer Legal Remedies Act: sustained for failure to state a cause of action. Plaintiff failed to comply with the 30-day notice requirements of CC section 1782(a). The letter attached as exhibit A shows service "via facsimile and U.S. Mail," instead of registered or certified mail as required by the statute. Further, the letter is dated November 10, 2004; as the complaint was filed on November 15, 2004, plaintiff failed to give the required 30 days notice. The Court is not persuaded that this defect should be disregarded as the complaint seeks injunctive relief, to which the 30 day notice provision does not apply. The complaint also seeks damages. Leave to amend is denied at this time as plaintiff cannot now show compliance with the statute; however this ruling is without prejudice to a subsequent motion for leave to amend the complaint upon such compliance. Fourth cause of action for wrongful death: overruled. Defendant contends that this cause of action is defective because it relies upon claims for common law negligence, and there is no cause of action for negligence. However, in ruling on a demurrer the Court looks to the facts alleged, not the labels of the causes of action. The complaint alleges sufficient facts to show negligence. An amended complaint may be filed and served no later than April 22, 2005. The minute order is effective immediately. No formal order pursuant to CRC Rule 391 or further notice is required. a Department 54 April 12, 2005 Page 6 ______________ *** ITEM 12 04AS04722 MARQUIE FERNANDEZ, ET AL VS. ANTHONY J. SACA, ET AL Nature of Proceeding: Motion To Compel Filed By: LYNCH, KELLY Dropped. *** ITEM 13 04ED43060 STATE OF CALIFORNIA, ET AL VS. JOSE R. RAMOS Nature of Proceeding: CLAIM OF EXEMPTION Filed By: MCLAUGHLIN, L. 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. C.C.P.  706.051(c)(1); J.J.MacIntyre Co. v Duren (1981) 118 C.A.3d Supp. 16. Unemployment benefits wrongfully obtained are 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 $50 per month from the judgment debtor's earnings and return to the judgment debtor forthwith all funds withheld in excess of that amount. a *** ITEM 14 99AM01674 MICHAEL RADU, ET AL VS. MILDRED RYLAND Nature of Proceeding: Motion To Dismiss Filed By: QUADROS, RANDEL J. Defendant's motion to dismiss pursuant to CCP sections 583.10 and 583.360(a) is granted. The complaint was filed on March 3, 1999. The five-year statute ran March 3, 2004 absent any tolling. The case was submitted to arbitration during the six months preceding expiration of the five-year statute. Therefore under CCP section 1141.17(b), the case was tolled from September 3, 2003 (4 years 6 months from the filing of the complaint) until April 23, 2004 (request for trial de novo filed). The tolling period was 233 days. Not counting the 233 days the case was tolled in the five year period results in an expiration date of October 22, 2004. The complaint is dismissed pursuant to the mandatory provisions of CCP section 583.310. The minute order is effective immediately. No formal order pursuant to CRC Rule 391 or further notice is required. Defendant shall submit a judgment of dismissal for the Court's signature. a Department 54 April 12, 2005 Page 7 ______________ ***