&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 18, 2005, 09:00 ITEM 1 02AS07478 CHRISTOPHER L. PACE, ET AL VS. STEVE DICKENSON, ET AL č Nature of Proceeding: Filed By: Hearing advanced to April 8, 2005. *** ITEM 2 03AS03913 STACIE N. PETERSON VS. CARL KARCHER ENTERPRISES, INC., ET AL Nature of Proceeding: Motion To Compel Filed By: NAFTEL, JEREMY T. Defendant's motion for leave to file motion to compel deposition answers is granted. Defendant may file and serve the motion no later than April 28, 2005. The parties are advised that this ruling addresses only the issue before the Court in this motion, i.e. reopening discovery to allow defendant to file its motion for further deposition answers. The ruling is not intended and shall not be construed to address the merits of whether plaintiff should provide further deposition answers. Defendant's request for sanctions is denied as the Court does not find the opposition to be without substantial justification. CCP section 2024(e). The minute order is effective immediately. No formal order pursuant to CRC Rule 391 or further notice is required. a Department 54 April 18, 2005 Page 2 ______________ *** ITEM 3 03AS05470 LISA STEELE VS. YOUTHFUL OFFENDER PAROLE BOARD, ET AL Nature of Proceeding: Summary Judgment Filed By: MORGAN, TAMARA L. This matter is continued on the Court's own motion to April 22, 2005. a *** ITEM 4 03AS05962 DENISE RUSSEL VS. CAROL ANN RUNGE Nature of Proceeding: MOTION TO COMPEL Filed By: FITZSIMMONS, DEBRA A. Continued to 04/22/2005 *** ITEM 5 03AS05992 KAREN NEWBERRY, ET AL. VS. WILLIAM EUGENE NEWBERRY Nature of Proceeding: DEFAULT HEARING Filed By: CASS, PAUL L. Appearance Required. *** ITEM 6 04AS00916 PAULA UNDERWOOD VS. RIVER POINTE APARTMENTS Nature of Proceeding: Summary Judgment Filed By: PASARD, MARK S. Defendant's motion for summary judgment is granted. The complaint alleges plaintiff was injured when she tripped on an uplifted sidewalk outside the apartment complex owned by defendant. Defendant contends the defect is trivial as a matter of laws. The evidence produced by defendant shows the following. On the day of the incident plaintiff left her apartment about 2:30 p.m. to go the grocery store. The day was dry, warm and sunny. Plaintiff was wearing sneakers, and was walking on the left side of the sidewalk. She tripped over crack about one inch deep. There was no debris, water or grease coverinh that portion of the sidewalk when she fell. The lighting did not disguise the crack. She had walked down that sidewalk before the day of the incident and was aware of the crack. She also saw the crack on the day she fell prior to the fall. She never made any complaints to defendant about the crack. This evidence is sufficient to meet defendant's initial burden, shifting the burden to plaintiff to produced evidence raising a triable issue of material fact. Plaintiff has produced evidence that the area around the sidewalk crack was heavily shaded and that she could not clearly see the crack until she was on top of it. Plaintiff estimated the deviation in the sidewalk to be one to two inches. Plaintiff had heard the maintenance supervisor state that he submitted requests for repair of other sidewalk cracks to defendant, but no repairs were made. After plaintiff tripped, defendant had the crack painted and several months later it was repaired. Defendant's objection to the evidence regarding subsequent repairs is sustained. Plaintiff's evidence is insufficient to raise a triable issue of material fact. With respect to the size of the differential, plaintiff testified that the portion she tripped over was one inch in differential, increasing to a two-inch differential at the left edge of the sidewalk. There is thus no dispute that the size of the crack at the place where plaintiff tripped was one inch. There is also no disputed evidence that plaintiff saw the crack before she tripped. Defendant is directed to submit a formal order complying with CCP section 437c(g) and CRC Rule 391 and judgment for the Court's signature. a Department 54 April 18, 2005 Page 3 ______________ *** ITEM 7 04AS01992 JAN DOD, ET AL VS. JEFFREY WAYNE, ET AL Nature of Proceeding: Summary Judgment Filed By: OWEN, MATTHEW B. Continued to 05/23/2005 *** ITEM 8 04AS02390 WAYNE HADDOCK, VS. JACQUELINE ANNE HART, Nature of Proceeding: MOT FOR REL FRM ADM DMD ADM Filed By: PATTON, CHRISTOPHER L. This matter was heard as an unopposed motion on April 8, 2005. However, opposition had been filed, but with a hearing date of April 18, 2005. The opposition states that the notice of motion did not contain the date and time of hearing, and that defendant never provided notice of the hearing date and time. Plaintiff ultimately obtained the date of April 18, 2005 from a court clerk. The notice of motion filed with the court contains a handwritten notation of the time and date for hearing, apparently filled in when the motion was filed. The order of April 8, 2005 granting defendant relief from the deemed admissions is hereby vacated and set aside. This matter is continued to May 4, 2005 for hearing. Defendant may file and serve a reply to the opposition no later than April 27, 2005. The Court Clerk is directed to mail a copy of the minute order to defendant. a *** ITEM 9 04AS03756 JAMES SEIDEL VS. SACTO COUNTY SHERIFF'S DEPT., ET AL Nature of Proceeding: Motion To Withdraw Atty of Rec Filed By: POTRATZ, NATHANIEL The motion to withdraw is unopposed and is granted. The Court will sign the formal order submitted with the moving papers. Counsel failed to provide notice of the Court's tentative ruling system, as required by Local Rule 3.04(D). An attachment complying with Local Rule 3.04(D) should be served in addition to the required Judicial Council forms. Notice of the tentative ruling system is particularly important in attorney withdrawal motions because the client is not expected to know the Local Rules. Counsel shall immediately advise the client of the tentative ruling system, and shall be available at the hearing, in person or by telephone, in the event the client appears without following the procedures set forth in Rule 3.04(B). a Department 54 April 18, 2005 Page 4 ______________ *** ITEM 10 04AS04508 SACRAMENTO CITY UNF SCH DIST VS. TLCD ARCHTECTURE,ETAL Nature of Proceeding: Demurrer Filed By: RUSSELL, MARK C. Defendant Mazzetti and Associates' demurrer to the third cause of action for negligence and the fourth cause of action for third party beneficiary is overruled. Plaintiff correctly contends that the factors set forth in Biakanja v. Irving (1958) 49 Cal.2d 647 must be considered in determining whether defendant owed a duty to plaintiff in the absence of privity. E.g. Weseloh Family v. K.L. Wessel Construction Co., Inc. (2004) 125 Cal.App.4th 152, 164-166. The applicaton of these factors raises numerous issues of fact that cannot be determined on demurrer. The allegations that plaintiff was a third party beneficiary of the contract between defendants TLCD Architecture and Mazzetti are sufficient at this stage of the pleadings. Defendant shall file and serve its answer no later than April 28, 2005. The minute order is effective immediately. No formal order pursuant to CRC Rule 391 or further notice is required. a *** ITEM 11 04AS04508 SACTO CITY UNIFIED SCHOOL DIST., VS. TLCD ARCHITECTURE, Nature of Proceeding: MOTION TO STRIKE Filed By: RUSSELL, MARK C. The motion to strike is granted without leave to amend pursuant to plaintiff's concession that it has no basis at this time to allege attorney fees. This ruling is without prejudice to a motion to amend the complaint should plaintiff obtain information through discovery or otherwise that would support a claim for attorney fees. The minute order is effective immediately. No formal order pursuant to CRC Rule 391 or further notice is required. a Department 54 April 18, 2005 Page 5 ______________ *** ITEM 12 04AS05070 BRENDA GANZ, VS. CITY OF SACRAMENTO, ET AL. Nature of Proceeding: DEMURRER Filed By: WANG, LAN Dropped. *** ITEM 13 04CS01596 MBNA AMERICA BANK, N.A. VS. LYNETTE C. FRANCIS Nature of Proceeding: Petition To Confirm Arb Award Filed By: PATENAUDE, RAYMOND A. The petition is unopposed and is granted. The Court will sign the formal order and judgment submitted with the moving papers. a *** ITEM 14 05CS00264 IN RE: SONYA LUNNETTE JACKSON Nature of Proceeding: Petition For Change Of Name Filed By: JACKSON, SONYA LUNNETTE Continued to 05/05/2005 *** ITEM 15 03ED01470 STATE OF CALIFORNIA, ET AL VS. RYAN K. TEVES 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 pay period from the judgment debtor's earnings and return to the judgment debtor forthwith all funds withheld in excess of that amount. a Department 54 April 18, 2005 Page 6 ______________ *** ITEM 16 04ED20170 STATE OF CALIFORNIA, ET AL VS. LY HUYNH 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 $35 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 17 05AM00112 GEORGE WILSON VS. CITY OF SACRAMENTO Nature of Proceeding: Demurrer Filed By: WANG, LAN The demurrer is overruled. Vehicle Code section 17001 provides a statutory basis for liability. Defendant shall file and serve its answer to the complaint no later than April 28, 2005. The minute order is effective immediately. No formal order pursuant to CRC Rule 391 or further notice is required. a ***