&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 LOREN E. McMASTER, Judge T. WEST, Clerk V. CARROLL, Bailiff April 15, 2005, 02:00 ITEM 1 01AS02293 WILLIAM MENDOZA VS. CENTRAL VALLEY ENTERTAINMENT, INC. ET AL Nature of Proceeding: DEFAULT HEARING Filed By: PONGRATZ, STEPHEN G. Dropped. *** ITEM 2 02AS06841 PATRICK MACINTYRE, ET AL VS. WEST COAST RELOCATABLES, ET AL Nature of Proceeding: MOTION TO MODIFY COURT RULING Filed By: GOUDY, MARK F. Plaintiffs Patrick MacIntyre and David Margen's Motion to Modify the Court's Ruling on Defendants' Motion for Summary Judgment, treated as a motion for reconsideration, is denied. The Court declines to modify its grant of summary judgment for the defense. The existence of a procedural flaw in the sale is not a disputed issue of material fact, but an issue of law, which was determined against them by the Court. The defendants originally tendered $500, an amount in excess of the interest of $455.89 actually due to plaintiffs, which was refused, and has subsequently tendered the exact amount, which has now been accepted. That issue is moot. Defendants are entitled to summary judgment in their favor as the Court has found that plaintiffs were not entitled to have title to the real property transferred to them, to have a declaration that the trustee's sale of October 15, 2002 was valid and the January 6, 2003 trustee's sale was invalid, nor to receipt of a Trustee's Deed upon Sale. Plaintiffs are entitled to no further remedy. This minute order is effective immediately. No formal order nor further notice is required, the tentative ruling providing sufficient notice. 6841203 Department 53 April 15, 2005 Page 2 ______________ *** ITEM 3 03AS01884 LAURA D. BAUMANN VS. STATE OF CA, ET AL Nature of Proceeding: MOTION TO COMPEL Filed By: ROGERS, DANIELLE Plaintiff's Motion to Compel Thompson to Provide Further Responses to Deposition Questions is granted in part and denied in part. The cross-motions for sanctions are denied. Defendant Thompson, former staff counsel to defendant Dept. of Fish and Game ("DFG") refused to answer questions at his deposition, on the advice of counsel, as to the reason why he left DFG, based upon his personal right to privacy. He further refused to answer questions, on the advice of counsel, as to an exchange of e-mails with Margaret Ware, EEO at DFG, on the basis that they had been inadvertently disclosed and were subject to the attorney-client privilege. Plaintiff's complaint alleges failure to engage in the interactive process, failure to accommodate, disability discrimination, retaliation and harassment in violation of FEHA and violation of the California Family Rights Act against the DFG and seven individual defendants, six of whom were attorneys for the DFG. Thompson asserts the attorney-client privilege as to the e-mails exchanged with Ware (Plaintiff's Exh. A, Bates D0334.). DFG, although an entity, is entitled to an attorney-client privilege. Here, Ware, as the head of the EEO department at DFG was communicating with staff counsel (Thompson) regarding the legal requirements for reasonable accommodation of plaintiff's disability. Ware was a member of management, and Thompson was retained to provide legal advice to management at DFG on employment issues. The document appears to be an attorney client communication between Thompson and Ware as to reasonable accommodation and essential job function issues. Defendant asserts that he production was inadvertent and accidental, thus no waiver of the privilege occurred. Based on the language of Evidence Code section 912, "waiver" does not include accidental, inadvertent disclosure of privileged information by the attorney. State Comp. Ins. Fund v. Wps, Inc. (1999) 70 Cal. App. 4th 644, 654. A trial court called upon to determine whether inadvertent disclosure of privileged information constitutes waiver of the privilege must examine both the subjective intent of the holder of the privilege and the relevant surrounding circumstances for any manifestation of the holder's consent to disclose the information. State Comp. Ins. Fund v. Wps, Inc. (1999) 70 Cal. App. 4th 644, 652-653 Here, counsel for the defense produced the e-mail at issue, when responding to 178 document requests as to each of eight defendants. Many privileged documents were withheld, including other communications between Ware and Thompson, as set forth on the privilege log. (Hendrickson Dec., Exh. B.) Defendant asserts that he production was inadvertent and accidental, and the circumstances surrounding the production appear to reflect that this is the case. The Court therefore finds that the document is privileged, the disclosure inadvertent, and moving party is ordered to return the e-mail and the motion to compel answers to deposition questions regarding the e-mails is denied. Defendant Thompson has ceased to object to answering questions at his deposition, as to the reason why he left DFG, based upon his personal right to privacy. Thus the motion is granted as to these questions. The cross-motions for sanctions are DENIED, as the Court finds that both parties acted with substantial justification. Code of Civil Procedure section 2025. This minute order is effective immediately. No formal order nor further notice is required, the tentative ruling providing sufficient notice. 1884203 STOPPED HERE Department 53 April 15, 2005 Page 3 ______________ *** ITEM 4 03AS02455 DEBORAH SHARP, ET AL VS. SHELL OIL COMPANY Nature of Proceeding: MOT FILE AMENDED COMPLAINT Filed By: BALE, ROBERT Dropped. Judge Abbott ruled on this matter on April 13, 2005. *** ITEM 5 03AS03689 CAMMRY COCHREN, ET AL VS. GOLDEN STETA PROPERTY FUND, ET AL Nature of Proceeding: MOT SUBSTITUTION OF GUARDIAN AD LITEM Filed By: LASKIN, ALAN M. Plaintiff's motion to substitute the guardian ad litem is denied without prejudice. After the court issued its tentative ruling granting defendants' motion for summary judgment on September 23, 2004, the court was advised that the matter had settled. Therefore, the motion was dropped. There is no indication that the guardian ad litem has been given notice of this motion. Counsel has submitted his own cryptic declaration stating that facts have come to light to suggest it is in the best interest of the plaintiff to have her grandmother appointed guardain ad litem in place of her father. There is no declaration from the grandmother and counsel has not set forth facts to support a substitution other than the fact that plaintiff is living with her grandmother. This minute order is effective immediately. No formal order is required, the tentative ruling being sufficient notice. *** ITEM 6 03AS06075 JANET BREWER, ET AL VS. LENNAR RENAISSANCE, INC., ET AL Nature of Proceeding: MOTION ENFORCE SETTLEMENT AGREMENT Filed By: BLAKE, KRISTIN N. Defendants' motion to enforce the settlement agreement is denied. The parties entered into a settlement resolving all real property claims and specfically reserving any claims for damage to personal property, personal injuries, and relocation expenses. First, the court cannot enforce the agreement as a judgment under CCP 664.6 when the entire case has not been resolved. Second, the parties agreed to mediation and if that fails, to arbitration. They must follow the arbitration procedures in their settlement agreement. It will be up to the arbitrator to determine whether plaintiffs may assert the causes of action they have alleged in the amended complaint and whether those causes of action reflect only those claims reserved by the settlement agreement. This minute order is effective immediately. No formal order is required, the tentative ruling being sufficient notice. Department 53 April 15, 2005 Page 4 ______________ *** ITEM 7 03AS06207 ROBERT W. GRAYKOWSKI VS. DARRICK LAWSOM, ETAL. Nature of Proceeding: Motion To Compel Filed By: ABRAMS, EVA Plaintiff's motion to compel production of documents requested in the notice of deposition is unopposed and granted. Defendant shall produce the documents by April 25, 2005. Sanctions are denied as the motion was not opposed. Although CRC 341 purports to authorize sanctions if the motion is unopposed, the Court declines to do so. The specific statute governing this discovery, CCP 2025 (o) authorizes sanctions only if the motion is 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. Firmater, Inc. (1997) 60 Cal.App.4th 352, 355. This minute order is effective immediately. No formal order is required, the tentative ruling being sufficient notice. *** ITEM 8 04AS02299 HARBOR SPECIALTY INS. CO., ET AL VS. LUIS BEDOYA, ET AL Nature of Proceeding: Motion To Strike Filed By: ROSE, PATRICK G. This motion was continued from March 16 to allow defendant to file an opposition. No opposition having been filed, the tentative ruling of March 16, 2005 is confirmed and incorporated herein: Plaintiff's Motion to Strike Answer as a discovery sanction for failure to obey court order of November 17, 2004, requiring responses to discovery to be served by November 29, 2004 is unopposed and is granted. The defendant has willfully failed to obey its discovery obligations and this court's order. A terminating sanction is appropriate. Any lesser sanction is futile given that the requests for admission as to this defedant have already been deemed admitted. Defendant may request a default and default judgment by the usual procedure. This minute order is effective immediately. No formal order is required, the tentative ruling being sufficient notice. Department 53 April 15, 2005 Page 5 ______________ *** ITEM 9 04AS02817 EBISU INVESTMENTS, ET AL VS. TRUDY MARILYN EHMKE, ET AL Nature of Proceeding: Demurrer Filed By: KELLY, KENNETH Defendants Young and Bonneville's (Bonneville) demurrer to the first cause of action for intentional interference with prospective economic advantage and third cause of action for fraud is sustained. Plaintiffs Ebisu, Tippet, and de Vine's (Ebisu) opposition is not helpful and does not address significant issues raised in the demurrer. The allegations of the first cause of action are insufficient to show an economic relationship between Ebisu and Trust with the probability of a future economic benefit and insufficient to show Bonneville's knowledge of this relationship. The allegations of the third cause of action are insufficient to show Bonnevile knew of the expired agreement or its "savings clause," that there was any confidential relationship with Bonneville, or that Klausen was a "hidden' purchaser who was concealed from Ebisu. Ebisu had an agreement with defendant Trust to sell certain real property. The agreement was for 90 days and expired on May 20, 2003. The agreement also contained a "savings clause" of 365 days, which provided that if the property was sold to a buyer with whom Ebisu had negotiations within the 90 day term, then Ebisu would receive a commission even though the sale occurred after May 20, 2003. A condition precedent for this "savings clause" was that Trust must be given notice of the name of the prospective buyer before termination of the agreement. Plaintiff has failed to alleged it gave notice of Klausen as a prospective buyer before May 20, 2003. On August 16, 2003 Klausen presented an offer to Ebisu who then transmitted that offer to Trust on September 15, 2003. The offer identified Ebisu as listing agent. Plaintiff does not allege if the offer was accepted, rejected or ignored. It obviously was not accepted. Ebisu alleges defendants conspired to withdraw the offer and Trust entered into another agreement with Bonneville to avoid paying a commission to Ebisu. Ebisu does not contend Klausen was involved. The allegations are insufficient to establish an expectancy on the part of Ebisu and there are no allegations that defendants were aware of the agreement between Ebisu and Trust or its "savings clause." Trust's attorney's letter of January 2004 to Ebisu does not establish a right of Ebisu to a commission and it specifically states there is no listing agreement with Ebisu. Had the Klausen offer been accepted, Ebisu would have been entitled to a commission from Trust (not Bonneville), assuming it had given Trust notice of Klausen as a prospective buyer before May 20, 2003. There is nothing in the allegations to support a right to a commission when the property was sold to Bonneville, an entity in which Klausen is not alleged to have an interest. The allegations that Bonneville affirmed Klausen's interest in the property is a mere conclusion. Ebisu has not alleged Klausen was colluding with Bonneville and was actually a "hidden" purchaser. In fact no wrongful acts are alleged against Klausen who is not party to this action. Plaintiffs contend the demurrer is moot because they filed an amended complaint on January 22, 2005 after the court ruled on the demurrer of defendant Shumway. On February 22, 20054 demurrring defendants filed a demurrer to the first amended complaint. They also filed an amended demurrer to the first amended complaint on March 18, 2005. The demurrer is not moot. Plaintiffs are given leave to amend. Any amended complaint shall be filed and served by April 25, 2005. Responsive pleadings shall be filed 10 days thereafter, 15 days if service is by mail. If defendants choose to demur to the amended complaint, the court requests they attach a copy of the complaint to their demurrer, although they are not requried to do so. This minute order is effective immediately. No formal order is required, the tentative ruling being sufficient notice. Department 53 April 15, 2005 Page 6 ______________ *** ITEM 10 04AS02959 EMPLOYERS INSURANCE OF WAUSAU VS. APARTMENT INVESTMENT, ET A Nature of Proceeding: Motion To Compel Filed By: LARA, EDWARD The court has received no further communications from the parties and the matter is dropped. *** ITEM 11 04AS03055 FRED ROFF, ET AL VS. FLOORS TO GO, LLC, ET AL Nature of Proceeding: Demurrer Filed By: COURTEAU, DEVIN C. Defendants Abbey Carpet Co., Inc. and Floors To Go, LLC's Demurrer to plaintiffs' First Amended Complaint is sustained in part and overruled in part as set forth below. Defendants demurrer to the 1st and 4th causes of action for breach of contract and the 9th cause of action for an accounting are overruled. While Floors to Go, LLC and Abbey Carpet are not alleged to be parties to the contracts, plaintiffs allege that defendants are liable as successors-in-interest to Floors To Go, Inc. (FAC paras. 12, 14-16.) Plaintiffs will need to conduct discovery to provide the specificity requested by (and already known to) defendants. Defendants demurrer to the 8th cause of action for conversion is sustained without leave to amend. While a cause of action for conversion of money can be stated, a mere contractual right to payment is insufficient to state a cause of action for conversion. Farmers Ins. Exchange v. Zerin (1997) 53 Cal. App. 4th 445, 452. Defendants demurrer to the 10th cause of action for common counts (money had and received) is sustained without leave to amend. The essential allegations of a common count are (1) the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment. Farmers Ins. Exchange v. Zerin (1997) 53 Cal. App. 4th 445, 460. Plaintiffs have failed to allege indebtedness in a sum certain, and admits that they cannot do so. Defendants shall file and serve their answer to the remaining causes of action not later than Monday, April 25, 2005. This minute order is effective immediately. No formal order nor further notice is required, the tentative ruling providing sufficient notice. 3055203 Department 53 April 15, 2005 Page 7 ______________ *** ITEM 12 04AS04721 SHAINDEE TOLWIN V TERRY L. HALL, ET.AL. Nature of Proceeding: MOTION TO STAY DISCOVERY Filed By: EDWARDS, JOHN W. Defendants' motion to stay discovery until plaintiff has stated a viable claim is unopposed and granted. CCP 2031(b), Terminals Equipment Co. v City and County of San Francisco (1990) 221 Cal.App.3d 234, 247. This minute order is effective immediately. No formal order is required, the tentative ruling being sufficient notice. *** ITEM 13 05AS00065 U.S. NATIONAL LEASING VS. TOM AMBREY, ET AL Nature of Proceeding: Default Hearing Filed By: GIBERSON, KIRK E. Appearance Required. *** ITEM 14 05AS00259 RICARDS LIM VS. DARRIN NOGUCHI, ET AL Nature of Proceeding: MOT RELIEVED AS COUNSEL Filed By: SMITH, EDWARD A. Dropped. *** ITEM 15 05AS00589 BONITA THOMAS VS. ELK GROVE UNIFIED SCHOOL Nature of Proceeding: Demurrer Filed By: ANWYL, JAMES T. Dropped. Department 53 April 15, 2005 Page 8 ______________ *** ITEM 16 04AM05611 AVIS RENT-A-CAR SYSTEM, INC. VS. WALTER WILLIAM WERE Nature of Proceeding: MOTION TO STRIKE Filed By: BOOSKA, STEVEN Plaintiff's motion to strike the answer is granted. The answer should not have been filed as defendant's default had previously been entered. The court notes that defendant has filed an application to shorten time to hear his motion to set aside the default. This minute order is effective immediately. No formal. order is required, the tentative ruling being sufficient notice. *** ITEM 17 04ED42365 STATE OF CALIFORNIA, ET AL VS. SHALECHIA A. ROSS Nature of Proceeding: CLAIM OF EXEMPTION Filed By: MCLAUGHLIN, L. The claim of exemption is denied. The court is without jurisdiction to grant an exemption where, as here, the debt is incurred for the "common necessaries of life." CCP section 706.051(c)(1); J.J. MacIntryre Co. v. Duren (1981) 118 Cal.App.3d Supp. 16. The judgment creditor, however, will accept less than the maximum allowable amount. The sheriff is ordered to withhold $100.00 per pay period. Any amounts retained in excess thereof are to be returned to the judgment debtor. Judgment debtor should address the concerns expressed in the letter she filed with the court to the judgment creditor. *** ITEM 18 05AM00343 TOYOTA MOTOR CREDIT CORP. VS. WILLIAM G. MONTANDON Nature of Proceeding: Writ of Possession Hearing Filed By: ERNEST, STEVEN E. Plaintiff's application for writ of possession is unopposed and granted. No undertaking is required. Plaintiff shall submit a formal order on Judicial Council form. The court will not order a right of entry. Department 53 April 15, 2005 Page 9 ______________ ***