&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 AMOUNTèS 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 C. BEEBOUT, Clerk V. CARROLL, Bailiff April 18, 2005, 02:00 ITEM 1 01AS02875 SHEILA MELAVIC, ET AL VS. THOMAS J.FINNEGAN, ET AL Nature of Proceeding: MOT FURTHER EXTENSION OF STAY Filed By: CHEEVER, GENE K. Cross-defendant Johnson's Motion to Extend the Stay an additional 60 days until CIGA responds to the tender is granted. The stay extension ordered on January 3, 2005 expired on March 4. An additional extension of 60 days extends the stay until May 3, 2005. If cross-defendant seeks a further stay in the future it will have to submit a declaration from counsel showing further effort to obtain more detailed information from CIGA, and written correspondence from CIGA if available. The minute order is effective immediately. No formal order or further notice is required, the tentative ruling providing sufficient notice. *** Department 53 April 18, 2005 Page 2 ______________ ITEM 2 02AS06177 ESTATE OF LARRY J. SKATES, ET AL VS. GREGORY CANZANESE ET AL Nature of Proceeding: Summary Judgment Filed By: EMANUELS, ERIC S. Defendant Rogue Valley Medical Center's Motion for Summary Judgment is granted. The Court rules on Defendant's Evidentiary Objections to the Siler Declaration as follows: objections nos. 1-3 are sustained. Rogue Valley Medical Center, together with other named defendants, has been sued for medical malpractice in the death of plaintiffs' decedent, after he was life flighted to the hospital with a gunshot wound in a hunting accident. Defendant's prior motion for summary judgment, made on the ground that Rogue Valley was not negligent in its care of the plaintiffs' decedent, was denied by the Court on the grounds that disputed issues of material fact remain for determination at trial. Defendant now moves on the alternative grounds that its alleged negligence was not a substantial factor in causing the plaintiff's harm. CACI 400 sets forth the elements for medical malpractice as follows: "[Name of plaintiff] claims that [he/she] was harmed by [name of defendant]'s medical negligence. To establish this claim, [name of plaintiff] must prove all of the following: 1. That [name of defendant] was negligent; 2. That [name of plaintiff] was harmed; and 3. That [name of defendant]'s negligence was a substantial factor in causing [name of plaintiff]'s harm." Moving party hospital has submitted the declaration of Dr. John Luce, that nothing the hospital nursing staff did or failed to do was a substantial factor in causing the death of the plaintiffs' decedent. The expert opinion is adequately supported by evidentiary facts and a reasoned explanation of why the underlying facts lead to the ultimate conclusion. Bushling v. Fremont Medical Center (2004) 117 Cal. App. 4th 493, 510. Although plaintiff opposes the motion with the two declarations of nurse Bonnie Siler (dated Sept. 20, 2004 and April 4, 2005) the facts set forth in those declarations fail to create a disputed issue of material fact as to whether the alleged negligence of the hospital staff was the proximate cause of the decedent's death. Nurse Siler is not qualified to render an opinion as to the cause of death. Business & Professions Code section 2725(b). Only a licensed physician can render testimony in terms of a diagnosis. Business & Professions Code section 2038, 2041, 2052; 66 Ops. Cal. Atty. Gen. 427 (1983). In the absence of admissible evidence to create a disputed issue of material fact, the motion for summary judgment is granted. The prevailing party defendant Rogue Valley Medical Center is directed to prepare an order and judgment of dismissal for the Court's signature pursuant to C.C.P. section 437c(g) and C.R.C., Rule 391. 6177203 Department 53 April 18, 2005 Page 3 ______________ *** ITEM 3 03AS03909 HILDA HOUSTON, ET AL VS. AQUA CLEAN, ET AL Nature of Proceeding: Summary Judgment Filed By: ROSENTHAL, BRETT E. Continued to 04/23/2005 *** ITEM 4 03AS04241 SONJA NICOL LEE VS. MAGDALINA LOPEZ, ET AL Nature of Proceeding: MOTION TO SET ASIDE DEFAULT Filed By: RAUDMAN, PHYLLIS J. Defendant James Birabent's Motion to Set Aside Default and Default Judgment is unopposed and is granted. The Default entered on October 29, 2004 is vacated. Defendant shall file and serve the proposed answer on or before April 22, 2005. California Code of Civil Procedure section 473 permits relief from default and default judgment resulting from a party's mistake, inadvertence, surprise, or excusable neglect, provided that application for relief is made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order or proceeding was taken. Milton v. Perceptual Development Corp. (1997) 53 Cal.App.4th 861, 866. The minute order is effective immediately. No formal order is required, the tentative ruling providing sufficient notice. *** ITEM 5 03AS05065 KIMBERLEY NGUYEN VS. MANDATED COST SYSTEMS, INC., ET AL Nature of Proceeding: Summary Judgment Filed By: FOWLER, LAURA J. Dropped. Department 53 April 18, 2005 Page 4 ______________ *** ITEM 6 03AS05475 MARCIA A. EDGAR VS. SACTO ROOFING CO., INC., ET AL Nature of Proceeding: Motion To Compel Filed By: JAFFE, JROGER V. Continued to 04/21/2005 *** ITEM 7 03AS06859 DON JONOUBEI VS. JAVAD ALEREZA, ET AL Nature of Proceeding: MOTION TO QUASH Filed By: HOFFMAN, HOWARD M. Dropped. *** ITEM 8 04AS00837 KEVIN LAID, ET AL VS. HERBERT LEE HENRY, ET AL Nature of Proceeding: MOT WITHDRAW ATTY OF REC (LAID) Filed By: DONAHUE, MATTHEW P. Motion to Withdraw as attorney of record for plaintiff Kevin Laid is unopposed and is granted, on condition counsel file before the time of the hearing a copy of the return receipt for the mailing used to confirm that the address is current. If the motion is granted the court will sign the proposed formal order. If counsel does not provide the return receipt, the motion is denied without prejudice. If the client cannot be located the motion must be served on the court clerk pursuant to CCP 1011(b) and CRC 202.5. Department 53 April 18, 2005 Page 5 ______________ *** ITEM 9 04AS00837 KEVIN LAID, ET AL VS. HERBERT LEE HENRY, ET AL Nature of Proceeding: MOT RELIEVE ATTY OF REC(SULLIVAN) Filed By: DONAHUE, MATTHEW P. Motion to Withdraw as attorney of record for plaintiff Erin Sullivan is unopposed and is granted, on condition counsel file before the time of the hearing a copy of the return receipt for the mailing used to confirm that the address is current. If the motion is granted the court will sign the proposed formal order. If counsel does not provide the return receipt, the motion is denied without prejudice. If the client cannot be found the motion must be served on the court clerk pursuant to CCP 1011(b) and CRC 202.5. *** ITEM 10 04AS03165 GREGORY HAMPTON VS. LOUIS HAMPTON, ET AL Nature of Proceeding: Demurrer Filed By: WATSON, FRANKLIN T. The Demurrer of Defendants to the Second Amended Complaint is overruled. The Second Amended Complaint alleges three causes of action: the 1st for breach of contract, the 2nd for specific performance, and the 3rd for promissory estoppel. Each cause of action contains facts sufficient to state a cause of action. The amortization schedule attached to the complaint is sufficient to defeat the statute of frauds defense on demurrer. Defendants shall file and serve their answer to the Second Amended Complaint not later than Thursday, April 28, 2005. This minute order is effective immediately. No formal order nor further notice is required, the tentative ruling providing sufficient notice. 3165203 Department 53 April 18, 2005 Page 6 ______________ *** ITEM 11 04AS03519 NSHAIJA MUSIIME VS. MEDICAL BOARD OF CALIFORNIA Nature of Proceeding: DEMURRER/MOTION TO STRIKE Filed By: MORGAN, TAMARA L. Continued to 04/28/2005 Matter continued to April 28, 2005, on the court's own motion. *** ITEM 12 04AS04351 CONSUMER EFFECTS INC, ET AL. VS. DANIEL SPAIN Nature of Proceeding: Demurrer Filed By: PALMER, WILLIAM W. Demurrer by Cross-defendants Consumer Effects, Inc. and Stacey Larson to the Cross-complaint is ruled on as follows: Cross-complainant Spain alleges he was induced to leave a well paying stable job in Southern California by Larson, owner of Consumer Effects, and that she falsely promised that he would be given 50% of the company stock. Larson also allegedly falsely promised Spain a $250,000 a year salary and other benefits. Spain says he never got the promised salary and benefits and that after he took a few days off four months into the job he was terminated. 1st cause of action Fraud: Overruled. A cause of action is stated under Hunter v Upright Inc. (1993) 6 Cal.4th 1174. 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 s,ouxH¾defendant 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 use of action Wrongful Termination: Sustained without leave to amend for failure to state a cause of action. No cause of action in tort is stated. Foley v Interactive Data Corp. (1988) 47 Cal.3d 654. If cross-complainant seeks to plead a contract cause of action for breach of implied contract not to terminate but for good cause, he had not done so and may only do so on a motion to amend. 7th cause of action Violation of Labor Code section 970: Overruled. Cross-complainant may file and serve an amended cross-complaint on or before April 28, 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 moving party provide a copy of the amended pleading with 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 18, 2005 Page 7 ______________ *** ITEM 13 04AS04553 RICHARD A. LUCICH, ET AL V.S JOEL KENNETH LUCICH, ET AL Nature of Proceeding: Motion To Strike Filed By: PETERSON, K. GREG Continued to 04/28/2005 *** ITEM 14 04AS04869 DENNIS ROBINSON VS. HI TECH OVERHEAD DOOR COMPANY, INC.ETAL Nature of Proceeding: Motion To Strike Filed By: DATE, SUMIT S. Motion to Strike Answer and Cross-complaint is unopposed, taken as a concession to the merits, and is granted. Defendant improperly filed the Answer and Cross-complaint as a single document, which is not in conformance with the law and is subject to being stricken. Defendant may, on or before April 28, 2005, file and serve a separate Answer and Cross-complaint. The Court has noted numereous instances where Counsel for defendant has filed papers that have totally ignored the requirements of the Code of Civil Procedure and the applicable rules of Court. This is but another instance. Before filing any further document in this Court, Defendant's counsel is ordered to certify that he has read CCP section 420 - 475 and Rules 301-391 of the California Rules of Court. Such certification (declaration under penaly of perjury will suffice) shall be filed with the Clerk of Department 53. This minute order is effective immediately. No formal order or further notice is required, the tentative ruling providing sufficient notice. *** Department 53 April 18, 2005 Page 8 ______________ ITEM 15 04AS05171 JUAN MONTES VS. JIM ZUBILLAGA, ET AL. Nature of Proceeding: DEMURRER/MOTION TO STRIKE Filed By: HERNS, DANIEL G. Defendants' Demurrer to the Complaint is ruled on as follows: Plaintiff was a manager for defendant Coastal construction company for 14 years. Plaintiff alleges that he was promised continued employment if he was competent, and promised that if he moved from his position as foreman in Santa Clara to a position of manager in Sacramento, defendant would pay for the lease of his vehicle and the difference in his mortgage payments ($800 per month vs. $3200 per month.) Plaintiff also alleges that the individual defendant took out two credit cards in plaintiffs name without his knowledge and charged up the credit cards, injuring plaintiff's credit. Plaintiff alleges that he was fired after he objected to defendants' use of his name to obtain credit. Plaintiff also alleges that defendants told co-employees to lie and say that plaintiff stole materials from defendant to fabricate a reason to fire him. When plaintiff's son asked defendant why they fired his father, he was told it was because defendant could pay his 21 year old replacement less money. 1st cause of action Breach of Contract: Overruled. The complaint states a cause of action for breach of the implied-in-fact contract not to terminate but for good cause. The Court cannot rely on the extrinsic matter set forth in the moving papers relating to plaintiff's alleged fraud on the company. This cause of action does not name the individual defendant. 2nd cause of action Breach of Covenant of Good Faith and Fair Dealing: Overruled. This cause of action does not name the individual defendant therefore the individual need not have demurred to it. Every contract is accomanied by this implied covenant and it is not necessarily duplicative of the underlying contract claim, even if it is no longer a tort cause of action after the Foley case. 3rd cause of action Fraud: Overruled as to Coastal. A cause of action is stated based on Hunter v Upright Inc. (1993) 6 Cal.4th 1174. To the extent the individual defendant is named, the demurrer is sustained without leave to amend. 4th cause of action Defamation: Sustained with leave to amend for failure to state a cause of action. Plaintiff must plead who on behalf of the corporation or individual made what statements to whom. The current pleading is too vague as it refers to "defendants" without saying who made the statements. 5th cause of action Wrongful Impairment of Credit: Sustained with leave to amend. Although it is not clear what cause of action will be stated, some cause of action should be stated for defendant's intentional use of plaintiff's name to obtain a credit card in his name which destroyed his credit. 6th cause of action Wrongful Termination in Violation of Public Policy: Sustained without leave to amend as to the indidivual defendant since he was not the employer. Overruled as to Coastal. A cause of action is stated based on the age discrimination claim. 7th Age Discrimination: Sustained without leave to amend as to Jim Zubillaga since he is not the employer. Overruled as to Coastal. Plaintiff states a prima facie case for age discrimination. A trier of fact could infer from the statement made to plaintiff's son that plaintiff was fired and replaced with a younger employee so defendant could pay a lesser salary to the younger replacement. Motion to Strike Punitive Damages is denied. Plaintiff may file and serve an Amended Complaint on or before April 28, 2005. Reponse 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 18, 2005 Page 9 ______________ *** ITEM 16 04CS00575 DUNMORE HOMES VS. JEFF STEWART DRYWALL, INC. Nature of Proceeding: Motion To Compel Filed By: COFER, SCOTT E. Judgment creditor's Motion to Compel Responses to Post-Judgment Interrogatories and Requests for Production is granted. Compliance to be without objections on or before May 1, 2005. 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 17 05AS00201 MEHDI B. RAHIMI VS. NORDSTROM, ET AL Nature of Proceeding: Demurrer Filed By: GILL, THOMAS R. Demurrer to the Complaint is ruled on as follows: Plaintiff alleges he was given a pair of defective shoes by the Nordstrom sales person even though he asked for "a different type of shoe." Since he is blind he could not tell that the shoes were the wrong shoes. Negligence: Sustained with leave to amend for failure to state a cause of action. Plaintiff has not set forth sufficient facts to establish a duty and breach on the part of Nordstrom. Defendant has not demurred to the 2nd cause of action for product liability. Since this is the initial pleading, the court is granting leave to amend. Plaintiff may file and serve an amended complaint on or before April 29, 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 moving party attach a copy of the amended complaint to the moving papers. The minute order is effective immediately. No formal order is required, however defendant shall send a copy of the minute order to plaintiff forthwith. Counsel for defendant shall be available for a telephone appearance in the event plaintiff appears for oral argument at the time of the hearing, since defendant did not comply with Local Rule 3.04(D) which requires notice of the tentative ruling procedure in the notice of motion. Department 53 April 18, 2005 Page 10 ______________ *** ITEM 18 05CS00263 IN RE: ALBINA EMERLINDA VASQUEZ VEJAR Nature of Proceeding: Petition For Change Of Name Filed By: VEJAR, ALBINA Petition for Name Change is granted. *** ITEM 19 05CS00269 IN RE: MICHAEL ABRAM POWELL Nature of Proceeding: Petition For Change Of Name Filed By: POWELL, MICHAEL Petition for Name Changes is granted. *** ITEM 20 05CS00319 IN RE: JEREMY RAINES Nature of Proceeding: PET TRANSFER OF SETTLEMENT PAYMENTS Filed By: AHTIRSKI, EUGENE A. Petition to Transfer Structured Settlement Payments is denied. Petitioner seeks to purchase two future payments from payee in the amount of $253,360, with a present value of $165,925.68, for the price of $90,000, at an effective interest rate of 10.72% a year. While the interest rate is not unnecessarily unreasonable, the information provided by payee does not establish that the transfer is in his best interests. Payee wishes to use the money for the cost of a four year college degree ($32,000), $20,000 for a car, and a year's worth of rent. Payee has not accounted for all of the funds ($38,000 is excessive for one year of rent) Payee has not stated what degree he plans to obtain at Sacramento State University. He has not explained why he would pay over 10% interest to finance his education when a student loan would be much less expensive. Payee has not explained if he has explored the possibility of obtaining grant aid for school. Even if payee has no further medical expenses due to his broken leg, the court must still find that the transfer is in his and his dependent's best interests. On these facts, the court cannot make that determination. The minute order is effective immediately. No formal order or further notice is required, the tentative ruling providing sufficient notice. Department 53 April 18, 2005 Page 11 ______________ *** ITEM 21 05CS00387 CAROL ANDERSON WARD VS. ROBERT A. COOK, ETAL Nature of Proceeding: Petition To Compel Arbitration Filed By: DYER, GREGORY F. Petition to Compel Arbitration is granted. The respondents do not deny that the parties have an arbitration agreement nor that a dispute has arisen. The parties have been unable to agree on an arbitrator. Based on the Court's personal knowledge, Judge Park is limiting his activities to mediation. The Court nominates the following persons to serve as arbitrator. Cecily Bond, Ken Malovos, Joe Ramsey, Darrell Lewis, A. Irving Scott. The Court orders the parties to meet and confer to select an arbitrator, if necessary resorting to an alternate strike procedure. The minute order is effective immediately. *** ITEM 22 03AM09669 SANDBERG FURNITURE VS. RAY SAFRIAN, ET AL Nature of Proceeding: Motion To Compel Filed By: CHAN, PAUL (Continued to this date for oral argument only.) 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. *** ITEM 23 03AM09669 SANDBERG FURNITURE VS. RAY SAFRIAN, ET AL Nature of Proceeding: MOTION TO SET ASIDE DEFAULT Filed By: CHAN, PAUL (Continued to this date for oral argument only.) 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. Department 53 April 18, 2005 Page 12 ______________ *** ITEM 24 03AM11597 COLLECTIONS INCORP OF S F VS. NEW CASTLE HOMES, INC. Nature of Proceeding: Motion To File Amended Complai Filed By: MASCOTT, OWEN T. Motion to File Amended Complaint is denied without prejudice. There is no proof of service of the motion and no amended complaint attached as Exhibit 1 as stated in the declaration. CCP 1005(b); CCP 473; CRC 317(c) The minute order is effective immediately. No formal order or further notice is required, the tentative ruling providing sufficient notice. *** ITEM 25 04AM07985 HERITAGE COMMUNITY CREDIT UNION VS. BRUCE M. PRESLEY, ET AL Nature of Proceeding: CLAIM OF EXEMPTION Filed By: O'DONNELL, JOHN M. Claim of exemption is denied to the extent judgment creditor is entitled to $50 per pay period, up to $50 per month. Any amounts retained in excess thereof are to be returned to the judgment debtor. *** ITEM 26 04AM08867 PATRICIA BRUNKHORST, ET AL VS. JERRY ARNOLD Nature of Proceeding: Motion To Compel Filed By: STEIN, JONATHAN G. Dropped. *** Department 53 April 18, 2005 Page 13 ______________ ITEM 27 04ED39595 STATE OF CALIFORNIA, ET AL VS. AUDREY D. GREEN Nature of Proceeding: CLAIM OF EXEMPTION Filed By: MCLAUGHLIN, L. Claim of exemption is denied to the extent judgment creditor is entitled to $150 per pay period, up to $150 per month. Any amounts retained in excess thereof are to be returned to the judgment debtor. There is no exemption for the necessities of life if the underlying judgment is for the necessities of life. CCP 706.051(c)(1). However, judgment creditor is willing to take less than 25% of the net income (the federal limit on wage garnishment). Therefore, the sheriff is directed to withhold $150 per pay period. Any amounts retained in excess thereof are to be returned to the judgment debtor. *** ITEM 28 04ED45023 STATE OF CALIFORNIA, ET AL VS. ROBERT D. ALBIAR Nature of Proceeding: CLAIM OF EXEMPTION Filed By: KURTTILA, J. Claim of exemption is denied to the extent judgment creditor is entitled to $67 per week, up to $268 per month. Any amounts being retained in excess thereof are to be returned to the judgment debtor. There is no exemption for the necessities of life if the underlying judgment is for the necessities of life. CCP 706.051(c)(1). However, judgment creditor is willing to take less than 25% of the net income (the federal limit on wage garnishment). Therefore, the sheriff is directed to withhold $67 per pay period. ***