&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 SHELLEYANNE W L CHANG, Judge R. ROUSE, Clerk V. CARROLL, Bailiff April 14, 2005, 09:00 ITEM 1 01AS07818 RONALD KERN, ET AL VS. DAEWOO MOTOR AMERICA, INC., ET AL č Nature of Proceeding: Motion To Dismiss Filed By: FRITZ, ANTHONY P. Defendant Daewoo of Cerritos' motion to dismiss complaint for failure to serve summons and complaint within three years is denied. This action was stayed pursuant to order of Judge Park on November 7, 2002 as the Court was advised that all Daewoo defendants had filed bankruptcy. There is no record in the court's file that the stay has been lifted. The minute order is effective immediately. No formal order pursuant to CRC Rule 391 or further notice is required. a *** ITEM 2 02AS07030 HI-VOLTAGE WIRE WORKS, INC., ET AL VS. WALTER ZACHARIA, ETAL Nature of Proceeding: Filed By: On the court's own motion, the matter is continued until April 28, 2005, so that it may be heard at the same time as defendant's demurrer. *** ITEM 3 03AS00902 GLENDA L. HALL VS. PUBLIC EMPLOYEES RETIREMENT SYS., ET AL Nature of Proceeding: Summary Judgment Filed By: HENRICKSON, TRACY S. Judge Chang discloses that her husband is a Deputy Attorney General who works full-time as special counsel to the California Student Aid commission (CSAC). He works at CSAC through an inter-agency agreement between the California Attorney General's Office and CSAC whereby CSAC reimburses the Attorney General's Office for his salary and benefits costs. Defendant PERS' motion for summary judgment is unopposed and is granted. The second amended complaint alleges a single cause of action for race discrimination. Although various individuals are named in the caption and introductory paragraphs of the second amended complaint, there are no charging allegations against them. Therefore, the only remaining defendant in this case is defendant PERS. Defendant has produced evidence that plaintiff's race was not a factor in the denial of her requests for promotion, and it had legitimate reasons to deny those requests in that other more qualified candidates were selected. This evidence is sufficient to meet defendant's intitial burden, shifting the burden to plaintiff to produce evidence raising a triable issue of material fact. Having filed no opposition to this motion, plaintiff has not met her burden. Defendant is directed to submit a formal order complying with CCP section 437c(g) and CRC Rule 391 and a judgment for the Court's signature. a Department 54 April 14, 2005 Page 2 ______________ *** ITEM 4 03AS03588 SUSAN NIELSEN, ET AL VS. NNN 4241 BOWLING GREEN 10 LLC ET AL Nature of Proceeding: SUMMARY JUDGMENT (COMPLAINT) Filed By: BOWLEY, GORDON W. Defendant Ferguson Janitorial & Carpet Cleaning's motion for summary judgment, or in the alternative, summary adjudication, as to plaintiffs Susan Nielsen and Bill Nielsen's complaint, which is unopposed, is granted. Defendant presents admissible evidence sufficient to shift to plaintiffs the burden of demonstrating the existence of a triable issue of material fact. Having failed to oppose defendant's motion, plaintiffs have not met their burden. Defendant, therefore, is entitled to judgment as a matter of law. Defendant's counsel shall prepare an order pursuant to CCP section 437c(g) and CRC 391 and a judgment for the court's signature. f *** ITEM 5 03AS03588 SUSAN NIELSEN, ET AL. VS. NNN 4241 BOWLING GREEN, LLC,ETAL. Nature of Proceeding: SUMMARY JUDGMENT (C-COMPLAINT) Filed By: BOWLEY, GORDON W. Cross-defendant Ferguson Janitorial & Carpet Cleaning's motion for summary judgment, or in the alternative, summary adjudication as to NNN 4441 Bowling Green 10, LLC's cross-complaint is granted. This is a slip and fall case. Plaintiff Sue Nielsen sued NNN, contending she was injured by an improperly maintained carpeted area in a building owned by NNN. NNN cross-complained against Ferguson, with whom it had a contract for janitorial services. That agreement required Ferguson to indemnify NNN "against any claims . . . arising out of this Contract or the performance of the Work" by Ferguson. Excluded from the indemnification were "liabilities caused by the intentional or negligent acts or omissions of" NNN or the building manager. NNN sued Ferguson for implied, express, and contractual indemnity, as well as for breach of contract and declaratory relief. According to the cross-complaint, plaintiff's accident either falls within the indemnity clause of the parties' contract or it arose out of that contract. Yet according to its discovery responses, NNN denies the existence of a dangerous condition at the time of plaintiff's accident and denies that Ferguson knew of such a condition. NNN also contends that plaintiff's injury was not "due to the negligence of anyone." Further, Pat Ferguson, who personally performed the contractual janitorial duties, declares that he "never discovered" or heard of any hazardous condition in the hallway where plaintiff fell. Finally, the building manager, CB Richard Ellis, conducted regular inspections of the building and no evidence of any defect exists in Ellis' files. This showing is sufficient to shift to NNN the burden of demonstrating the existence of a triable issue of material fact. NNN fails to meet its burden. It offers absolutely no evidence in opposition to the motion other than the janitorial contract itself. Yet there must be a connection between that contract and plaintiff's alleged injury for either breach or indemnity to exist. To establish that connection, NNN simply contends that Ferguson had a duty to inspect and report any "condition of the building requiring repair" to Ellis' attention. As stated above, however, Ferguson presents evidence that it did not see or know of any defect, including Pat Ferguson's own declaration. Although NNN is correct that Ferguson did not submit a similar declaration from each person who ever worked in the building, the mere possibility that one employee might have noticed a defect is insufficient. "When opposition to a motion for summary judgment is based on inferences, those inferences must be reasonably deducible from the evidence, and not such as are derived from speculation, conjecture, imagination, or guess work." Annod Corp. v. Hamilton & Samuels (2002) 100 Cal.App.4th 1286, 1298-1299. NNN presents no evidence from which any inference might be drawn. Cross-complainant having failed to demonstrate the existence of a triable issue of material fact, cross-defendant is entitled to judgment as a matter of law. Cross-defendant's counsel shall prepare an order pursuant to CCP section 437c(g) and CRC 391 and a judgment for the court's signature. f Department 54 April 14, 2005 Page 3 ______________ *** ITEM 6 04AS02300 JAMIE NULPH VS. NOAH DIAMOND, ET AL Nature of Proceeding: Default Hearing Filed By: BRANNEN, ROBERT W. As default has been taken against only one defendant, Noah Diamond, and not against the other defendant Noel Diamond, who was sub-served on November 14, 2004, the Court exercises its discretion against entry of a several judgment. CCP section 579. a *** ITEM 7 04AS03634 DOUGLAS MOYLES, ET AL VS. JOHNSON CONTROLS, INC., ET AL Nature of Proceeding: Demurrer Filed By: Case transferred to Department 53 *** ITEM 8 04AS04758 SEIU LOCAL 1000(CSEA), ET AL VS. DEPT OF PERS ADM, ET AL Nature of Proceeding: Demurrer Filed By: SEABOURN, MARGUERITE D. Dropped. *** ITEM 9 04CS01702 CACV OF COLORADO, ET AL. VS. AL D SEATRAND Nature of Proceeding: MOT TO CONFIRM ARB AWARD Filed By: DESAI, VIJAY S. The motion to confirm arbitration award is granted. Respondent's opposition requests the Court to vacate the arbitration award on various grounds. However, the request is untimely. A petition to vacate arbitration award or a response requesting the award be vacated must be filed and served within 100 days from the date of service of a signed copy of the arbitration award. CCP sections 1288, 1288.2. The arbitration award was served on May 24, 2004; the last day to file the petition or response requesting the award be vacated was September 1, 2004. The minute order is effective immediately. No formal order pursuant to CRC Rule 391 or further notice is required. Petitioner shall submit a judgment for the Court's signature. a Department 54 April 14, 2005 Page 4 ______________ *** ITEM 10 05AS00398 ANN S. KENNEDY VS. ANDREW E. BAKOS Nature of Proceeding: Motion To Strike Filed By: VANCE, NATALIE P. Dropped. Defendant Andrew E. Bakos' motion to strike portions of complaint is unopposed and is granted. The Court will sign the formal order submitted with the moving papers. a *** ITEM 11 05AS00758 TIFFANI ASHCRAFT-MEAD VS. RIVER BEND MEDICAL ASSOC INC. ETAL Nature of Proceeding: Motion To Strike Filed By: GUARD, DANIELLE M. Dropped. *** ITEM 12 05CS00210 IN RE: BOW-MARIE NICOLE KOWALCZYK Nature of Proceeding: PETITION FOR CHANGE OF NAME Filed By: KOWALCZYK, BOW-MARIE NICOLE The petition is unopposed and is granted. a *** ITEM 13 05CS00218 IN RE: BRENDA JOYCE LOGAN MORRIS Nature of Proceeding: Petition For Change Of Name Filed By: UHER, JOEL K. The petition is unopposed and is granted. a Department 54 April 14, 2005 Page 5 ______________ *** ITEM 14 05CS00320 IN RE: SONIA E. HUSTON Nature of Proceeding: PET FOR APPR FOR TRANSFER OF STRUCTURED STLMT PAYMT RIGHTS Filed By: AHTIRSKI, EUGENE A. Appearance required. According to the annuity agreement attached as Exhibit D to the petition, transferor Sonia Evelen Huston is entitled to receive monthly payments in the amount of $2,451.61 until 2023. There is no mention in that agreement of any lump sum payments. The application for single premium immediate annuity also attached as Exhibit D shows a payment schedule that includes monthly payments of $2,451.61, as well as a lump sum payment of $50,000 on February 7, 2005, just over two months ago. The payment scheduled for February 7, 2010 is not $25,000, as represented in the petition, but $75,000. Further, the underlying settlement agreement attached as Exhibit F to the petition indicates that the settlement monies were to be deposited into a special needs trust. There is no document presented that indicates that the settlement monies are no longer in a special needs trust. The Court will not grant the petition absent a satisfactory explanation of the above, nor will it approve the payment of $500 in administrative fees to be paid by Ms. Huston to the transferee. a. *** ITEM 15 05SP00004 MONIK N. GORDON VS. ELK GROVE UNIFIED SCHOOL Nature of Proceeding: Motion For Reconsideration Filed By: RANDOLPH, JOHN D. On the court's own motion, the matter is continued to April 27, so that it may be heard by Judge Cecil. *** Department 54 April 14, 2005 Page 6 ______________ ITEM 16 03AM06828 BRANDON HANDLY VS. JORDON MOSER, ET AL Nature of Proceeding: MOTION TO VACATE JUDGMENT IN ARBITRATION PROCEEDINGS Filed By: JANNER, LEONARD P. Defendant's motion to vacate judgment in arbitration proceedings is unopposed and is granted. The arbitration award was entered on December 7, 2004. Defendant filed a timely request for trial de novo on December 13, 2004. Judgment on arbitration award was erroneously entered on March 9, 2005 and is hereby vacated and set aside. This matter is hereby referred to Trial Setting Conference at 9:00 a.m. on May 2, 2005. The Court's records indicate that the matter was at some point prior to judgment referred to trial setting conference on October 3, 2005; that date is also hereby vacated. The minute order is effective immediately. No formal order pursuant to CRC Rule 391 or further notice is required. a *** ITEM 17 04AM00240 C & R CUSTOM FURNITURE VS. DAVID GAFARI, ET AL Nature of Proceeding: MOTION FOR ORDER TO SET ASIDE DISMISSAL Filed By: MULALLY, THOMAS R. Plaintiff's motion to set aside dismissal of defendant David Gafari, aka Saed M. Ehsani is dropped as insufficient notice was given. C.C.P.  1005 requires 16 court days notice, plus 10 calendar days when the place of address is outside California. Defective notice deprives the Court of jurisdiction to consider the motion. a *** ITEM 18 04AM05302 JOYCE HOCHMUTH-NOWELL VS. BARLOW SKYLER, ET AL Nature of Proceeding: Motion To Dismiss Filed By: EMANUELS, ERIC S. Defendants' motion to dismiss complaint for failure to amend within time allowed by court is dropped from calendar for insufficient notice. The moving papers were served by mail on March 21, 2005. Service by mail requires 16 court days plus 5 calendar days notice. CCP section 1005(b); CRC Rule 317. The last date for timely service of the moving papers was March 17, 2005. Defective notice deprives the Court of jurisdiction to hear the motion. Lee v. Placer Title Co. (1994) 28 Cal.App.4th 503, 509, 511. Department 54 April 14, 2005 Page 7 ______________ *** ITEM 19 04ED25254 STATE OF CALIFORNIA, ET AL VS. BRYANT H. NGUYEN Nature of Proceeding: CLAIM OF EXEMPTION Filed By: LIEN, V. 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 $100 per pay period from the judgment debtor's earnings and return to the judgment debtor forthwith all funds withheld in excess of that amount. a *** ITEM 20 05AM01294 LUCIUS M. WILLIAMS VS. DEVIN M. PREZIOSO Nature of Proceeding: Writ Of Attachment Filed By: WILLIAMS, LUCIUS M. The application for writ of attachment is granted on condition the proof of service of the moving papers is filed in Dept. 54 prior to hearing. As defendant has no equity in the vehicle, plaintiff is not required to file an undertaking. CCP section 515.010. Defendant may file an undertaking in the amount of $15,000 to prevent the repossession or to regain possession of the vehicle after repossession. CCP section 515.020. a *** Department 54 April 14, 2005 Page 8 ______________ ITEM 21 05CM00046 WAGNER, KIRKMAN, BLAINE & YOUMANS VS. KARUNA ANAND, ET AL Nature of Proceeding: Petition To Confirm Arb Award Filed By: GARNER, ERIC R. Continued to 06/23/2005 ***