&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 THOMAS M. CECIL, Judge R. ROUSE, Clerk V. CARROLL, Bailiff April 19, 2005, 09:00 ITEM 1 02AS04548 RONDA FORD VS. KEN BROWN, ET AL č Nature of Proceeding: MOTION FOR AWARD OF ATTORNEY'S FEES AS PREVAILING PARTY Filed By: GOODMAN, KAREN M. Defendant's motion for an award of reasonable attorney's fees as the prevailing party is unopposed and is granted. C.C.P.  1021. Upon review of the declaration of Goodman, including supporting documentation, the court finds the hours worked and the rates charged reasonable and awards defendant Elsie Brown reasonable attorney's fees in the amount of $22,052.74. This minute order is effective immediately. No formal order is needed, C.R.C. rule 391, nor is further notice of this ruling required; C.C.P.  1019.5. c *** Department 54 April 19, 2005 Page 2 ______________ ITEM 2 03AS03586 MICHAEL SCHUBERT VS. ROGER SWANSON, ET AL Nature of Proceeding: MOTION TO AMEND COMPLAINT Filed By: YELLAND, ELIZABETH A. Continued by agreement of the parties to April 29, 2005 at 9:00 a.m. in Department 32 to be heard by Judge Shelleyanne W L Chang. *** ITEM 3 03AS03586 MICHAEL SCHUBERT VS. ROGER SWANSON, ET AL. Nature of Proceeding: MOTION FOR SUMMARY JUDGMENT Filed By: DYER, GREGORY Continued by agreement of the parties to April 29, 2005 at 9:00 a.m. in Department 32 to be heard by Judge Shelleyanne W L Chang. *** ITEM 4 03AS05992 KAREN NEWBERRY, ET AL. VS. WILLIAM EUGENE NEWBERRY Nature of Proceeding: DEFAULT HEARING Filed By: CASS, PAUL L. Appearance Required. *** ITEM 5 04AS00842 KAREN M. CAMPBELL VS. UC DAVIS MEDICAL CENTER, ET AL Nature of Proceeding: Demurrer Filed By: KNUDTSON, GIGI M. Continued to 06/16/2005 *** ITEM 6 04AS01198 SANDI PALMER VS. STATE FARM GENERAL INSURANCE COMPANY, ET AL Nature of Proceeding: MOT TO COMPEL SPECIAL ROG SET 2 Filed By: GAMBOA, RENE I. Dropped. Department 54 April 19, 2005 Page 3 ______________ *** ITEM 7 04AS01198 SANDI PALMER, VS. STATE FARM GENERAL INSURANCE CO., ET AL. Nature of Proceeding: MOT TO COMPEL SPECIAL ROG ST 1 Filed By: GAMBOA, RENE I. Dropped. *** ITEM 8 04AS01383 GARY ERVIN VS. LEE&MIDGE TAYLOR, ET AL Nature of Proceeding: Summary Judgment Filed By: RATHE, MARK W. Dropped. *** ITEM 9 04AS01716 ROBERT MARTINEZ, ET AL VS. GAB ROBBINS NO AMERI, INC., ET AL Nature of Proceeding: Demurrer Filed By: HIRSCH, CLIFFORD Defendants' demur to the Third Amended Complaint. Plaintiffs allege that they owned and operated a restaurant which caught fire three times. Plaintiffs submitted a claim to their insurance company and the claim was handled by Defendant Beatty, an insurance adjustor. According to plaintiffs, Mr. Beatty wrote a memo to a third party in which he stated/insinuated that Plaintiffs burned their own restaurant for financial gains. The defendants argue the allegations disclose a conditional privilege and therefore plaintiffs must allege facts showing malice, rather than concluding the conduct was malicious and intentional. The allegations however do not, on their face, state to whom the memo was written; it is therefore impossible to discern whether the recipient was an interested person. The demurrer to the first, second and third causes of action on this ground is overruled. Defendants also demur to the third cause of action for intentional infliction of emotional distress, arguing there are no facts alleged showing outrageous conduct or that plaintiffs suffered severe emotional distress. At the outset, the Court notes that defendants pepper their arguments with factual statements that are not within the four corners of the Third Amended Complaint ( e.g., Beatty reasonably believed the insured stood to profit from the fires and communicated this fact to his client; furthermore, he never communicated the memo outside of the insurer-adjuster relationship). The demurrer is sustained with leave to amend. Plaintiff alleges Beatty wrote a memo and published orally to others that Plaintiffs burned their own restaurant for financial gain; the statements were false and damaged plaintiffs; Beatty made the statements to injure plaintiffs, knowing they were false; and as a result, plaintiffs suffered emotional and physical distress. There are no facts or allegations however that plaintiffs suffered severe emotional distress. Plaintiffs to file and serve a Fourth Amended Complaint regarding the Third Cause of Action no later than Friday, April 29, 2005. Defendants to respond no later than Wednesday, May 11, 2005. Defendants also move for sanctions for plaintiffs' failure to serve further, verified answers to their Form Interrogatories, set one, as ordered by the Court on January 13, 2005. The code allows the court to make those orders that are just, including imposition of a monetary sanction, if a party fails to obey an order of the Court. Plaintiffs were ordered to serve further, verified answers and failed to do so. The Court therefore orders that Plaintiffs are not allowed to present evidence, in any form, in support of their case in chief if that evidence would have been responsive to the interrogatories that were the subject of the prior order. In addition, a monetary sanction of $1623.80 is awarded to defendants from plaintiffs and their counsel, jointly and severally. This minute order is effective immediately. No formal order is needed, C.R.C. rule 391, nor is further notice of this ruling required; C.C.P.  1019.5. c This minute order is effective immediately. No formal order is needed, C.R.C. rule 391, nor is further notice of this ruling required; C.C.P.  1019.5. c Department 54 April 19, 2005 Page 4 ______________ *** ITEM 10 04AS03138 GREENWICH INSURANCE CO. VS. AMERICAN COMMERCE INS. CO. Nature of Proceeding: Summary Judgment Filed By: ATHERTON, E. EUGENE Plaintiff moves for summary judgment on its complaint for declaratory relief. The complaint seeks a declaration that defendant's automobile policy was in full force and effect as of September 4, 2202 (sic) and had not been cancelled; it also seeks damages in the sum of $52,798.65. The motion for summary judgment is denied. Plaintiff has not supplied any evidence to support its prayer for damages of $52,798.65. Item 5 in its separate statement is not supported by the declaration of Rodriguez and in any event the sum stated in the paragraph is not the sum sought in the complaint. As far as the evidence discloses, Greenwich made worker's compensation payments to its insured, who alleged she was injured by American's insured. There is no evidence to show that American's insured is liable for the injuries sustained by plaintiff's insured. Declaration of Rodriguez, Atherton; defendant's request for judicial notice, which is granted. Defendant's objections to paragraphs III, IV, V and VII, and exhibit A of the Rodriguez declaration are sustained. Defendant's objections to paragraphs III, p. 2, "vehicle that William Edgar Skates was driving"; V, VI and IX are sustained. This minute order is effective immediately. No formal order is needed, C.R.C. rule 391, nor is further notice of this ruling required; C.C.P.  1019.5. c Department 54 April 19, 2005 Page 5 ______________ *** ITEM 11 04AS03342 POLLY SCHUMACHER VS. EARTHCO INC., ET AL Nature of Proceeding: Motion To Compel Filed By: REDIGER, ROBERT L. The motion to compel Ms. Simonds to answer deposition questions is denied, as are all of defendant Earthco's requests. The questions asked by Mr. Shanley are far afield from the area specifically referenced in the court order of January 12, 2005. The deposition of Ms. Simonds is concluded. Although the parties discuss the deposition of Tim Shumacher, and plaintiff's retention of documents allegedly belonging to Earthco, there is no motion pending regarding that deposition or those documents and no ruling or order is made regarding them. The Court declines to appoint a referee, as exceptional circumstances do not currently exist. The Orders to Show Cause re Contempt are denied. A monetary sanction of $3,212.50 is awarded to plaintiff from defendant. This minute order is effective immediately. No formal order is needed, C.R.C. rule 391, nor is further notice of this ruling required; C.C.P.  1019.5. c *** Department 54 April 19, 2005 Page 6 ______________ ITEM 12 04AS03342 POLLY SCHUMACHER, VS. EARTHCO INC., ET AL. Nature of Proceeding: MOT TO ENFORCE COURT ORDER Filed By: PEREZ, ANTHONY M. JR. See ruling in item #10. *** ITEM 13 04AS03728 DEBORAH LAVENDA VS. SCOTT RODOWICK Nature of Proceeding: Motion To Compel Filed By: BASSETT, ROBERT D. Dropped. *** ITEM 14 04AS04504 DEBORAH L. POOLE, ET AL VS. MARK STAWICKI, ET AL Nature of Proceeding: Motion To Compel Filed By: OWENS, LAURA A. The motion is dropped for insufficient service of the notice of motion. The notice of motion was served March 23rd. C.C.P.  1005 requires 16 court days, plus 5 calendar days, notice when service is by mail. Defective notice deprives the Court of jurisdiction to consider the motion. Lee v Placer Title Co. (1994) 28 C.A.4th 503, 509, 511. *** ITEM 15 04AS04904 DENNIS LEE BARBER, II, ET AL VS. BRIAN JAMES MURAWSKI, ETAL Nature of Proceeding: Motion To Compel Filed By: BUZARD, SHERI M. Plaintiff is ordered to serve verified answers, without objections, to the City's Form Interrogatories, ##2.6, 2.7 and 11.1; and to serve a verification to Plaintiff's Response to the Request for Admissions, no later than Wednesday, April 20, 2005. The request for a monetary sanction is denied as the motion is not opposed on the merits. This minute order is effective immediately. No formal order is needed, C.R.C. rule 391, nor is further notice of this ruling required; C.C.P.  1019.5. c Department 54 April 19, 2005 Page 7 ______________ *** ITEM 16 04CS01062 PEOPLE OF THE STATE OF CA VS. US $610.00(JONATHAN L. SUMRALL Nature of Proceeding: MOT FOR ORDER REQUEST FOR ADMISSIONS BE DEEMED ADMITTED Filed By: LEONARD, STEPHANIE The admissions served on Jonathan L. Sumrall are deemed admitted unless, prior to the hearing, Mr. Sumrall serves proposed responses that comply with C.C.P.  2033(f)(1). C.C.P.  2033(k). A mandatory monetary sanction of $150 is awarded to the People from Mr. Sumrall. This minute order is effective immediately. No formal order is needed, C.R.C. rule 391. The People to serve Mr. Sumrall with notice of the Court's ruling no later than Tuesday, April 19, 2005. If the admissions are deemed admitted, they show there are no triable issues of material fact and the People are entitled to judgment as a matter of law. The motion for summary judgment is granted. See the admissions. This minute order is effective immediately. No formal order is needed, C.R.C. rule 391. The People to serve Mr. Sumrall with notice of this court's ruling no later than Tuesday, April 19, 2005. c *** ITEM 17 04CS01062 PEOPLE OF THE STATE OF CA VS. $610.00 JONATHAN L. SUMRALL Nature of Proceeding: SUMMARY JUDGMENT Filed By: LEONARD, STEPHANIE See ruling in item #15. Department 54 April 19, 2005 Page 8 ______________ *** ITEM 18 05AS00130 CYNTHIA AGUILAR, ET AL VS. RITE AID CORPORATION, ET AL Nature of Proceeding: DEMURRER - JOINDER Filed By: SCHACHTER, ALESA Dropped. *** ITEM 19 05AS00130 CYNTHIA AGUILAR, ET AL. VS. RITE AID CORPORATION, ET AL. Nature of Proceeding: DEMURRER Filed By: KROESCH, DOUGLAS A. Dropped. *** ITEM 20 05AS01216 JANEY K. JOHN VS. JAY JOHN WEBB, ET LA Nature of Proceeding: Writ Of Attachment Filed By: KUZMICH, MICHAEL J. The request for a writ of attachment is denied. The Court does not find that plaintiff has established the probable validity of her claim nor does the court believe the attachment is sought for the purpose of recovering on the claim upon which the attachment is based. C.C.P. 484.090(2) and (3). This minute order is effective immediately. No formal order is needed, C.R.C. rule 391, nor is further notice of this ruling required; C.C.P.  1019.5. c Department 54 April 19, 2005 Page 9 ______________ *** ITEM 21 03AM06652 LAURIE HASKIT VS. TIMOTHY STEELE Nature of Proceeding: Motion To Withdraw Atty of Rec Filed By: PRICE, CHRISTOPHER A. The motion to withdraw as counsel for plaintiff is granted, however counsel must first appear in department 42 on April 21 regarding the O.S.C. re Dismissal. The order will become effective after April 21, on the day counsel files a proof of service stating a copy of the signed order was served on the clerk of the court on behalf of the client. Counsel to also serve all other parties who appeared in the case with a copy of the signed order. *** ITEM 22 04AM00198 SHERMAN ACQUISITON VS. THOMAS W. STINSON JR. Nature of Proceeding: MOTION TO VACATE AND SET ASIDE DEFAULT JUDGMENT Filed By: YALON, JEROME M. JR. Plaintiff's motion to set aside the default and default judgment of defendant Thomas W. Stinson, Jr., entered on March 22, 2004, is granted. The default and default judgment are vacated and set aside. Plaintiff must submit a Request for Dismissal to the Court clerk no later than Tuesday, April 19, 2005. The Request for Dismissal that is stapled to the Motion to Set Aside the Default Judgment remains with the motion as an exhibit. This minute order is effective immediately. No formal order is needed, C.R.C. rule 391, nor is further notice of this ruling required; C.C.P.  1019.5. c Department 54 April 19, 2005 Page 10 ______________ *** ITEM 23 04ED39106 STATE OF CALIFORNIA, ET AL VS. CRISTINA S. CROSS Nature of Proceeding: CLAIM OF EXEMPTION Filed By: KURTTILA, J. 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. Unemployment Insurance wrongfully obtained is 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 $200 per month from the judgment debtor's earnings and return to the judgment debtor any amount it is holding greater than $400. ***