&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 AMOUNTS 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 20, 2005, 02:00 ITEM 1 02AS03737 JEWELL PIPER, ET AL VS. CANYON OAKS APTS, ET AL Nature of Proceeding: MOT SUBMIT TARDY WITNESS INFO Filed By: MULLEN, KEVIN B. Motion to Submit Tardy Expert Witness Information is denied. The exchange of expert information was in September 2004 and the initial trial date was November 9, 2004. Defendant did not designate its IME as an expert because counsel neglected to tell the attorney working on the case of this requirement. The November 9 trial date was continued to February 1 by stipulation, and the discovery cut-off date was continued to January 3, 2005. On February 1 the trial was continued to June 14 because there were no courtrooms available. Counsel for defendant admits he knew as of the second trial date that it had not designated an expert. Defendant has not shown the "exceptional circumstances" required to name a tardy expert outside the time limits of the expert discovery period, which ended in mid-January. (CCP 2034(l), (2034.710 as of July 1, 2005)) Defendant's counsel does not explain why he did not immediately seek to name the tardy expert once the oversight was discovered. Counsel for plaintiff told counsel for defendant at the settlement conference on January 18 that defendant had not named any expert and that plaintiff would move to strike any expert that had not been timely disclosed. Counsel for defendant has not acted diligently has not shown exceptional circumstances. The "no harm, no foul" argument is not a ground for allowing the submission of tardy expert witness information. The minute order is effective immediately. No formal order or further notice is required, the tentative ruling providing sufficient notice. Department 53 April 20, 2005 Page 2 ______________ *** ITEM 2 02AS06687 WASHINGTON MUTUAL BANK VS. JOSH BRIDGES, ET AL Nature of Proceeding: MOT SUBSTITUTE SUCCESSOR IN INTEREST Filed By: JUDKINS, LOUISE A. Continued to 05/12/2005 *** ITEM 3 03AS00403 ESTELLA ROWLAND VS. MCKINLEY HEALTHCARE CENTER, ET AL Nature of Proceeding: Motion To Compel Filed By: CLEMENT, LESLEY ANN Motion to Compel Depositions of 13 individuals is granted as to all party affiliated witnesses but is otherwise denied. Counsel are ordered to meet and confer to set up dates, times and places for the depositions to take place. Defendants have not met their burden to show that the "Harmon defendants" qualify for "Liberty Mutual" protection as "apex" personnel of a large corporation. The court notes that Martine Harmon has verified discovery responses. As to those persons who defendants contend are no longer affiliated: Bernice Schrabeck, Arthur Whitney, Ellen Kuykendahl, Juliann Glydon and Vickie Gagnon, defendants shall provide the last known address (business address, and if business address is unknown, home address) to counsel for plaintiff so they may be subpoenaed. Although it does not appear that plaintiff cleared the dates beforehand when she initially noticed the depositions, it appears that the parties have engaged in meeting and conferring to arrange for alternative dates for the depositions, and the reason the summary judgment motion was continued was so these depositions could be taken. Since the parties have reached an impasse, court intervention is necessary to expedite discovery. Sanctions are denied. The minute order is effective immediately. No formal order or further notice is required, the tentative ruling providing sufficient notice. Department 53 April 20, 2005 Page 3 ______________ *** ITEM 4 03AS02391 LETICIA A. ALVES VS. ANDRA DIAZ, ET AL Nature of Proceeding: MOTION TO TAX COSTS Filed By: JUDKINS, LOUISE A. Continued to 05/03/2005 *** ITEM 5 03AS06431 JOSEPH MORGAN VS. MARK DICICCO Nature of Proceeding: MOTION TO SET ASIDE JUDGMENT Filed By: WOOD, ALAN M. Plaintiff's Motion to Set Aside Judgment after arbitration award became final is denied. Such motion must be accompanied by clear and convincing evidence of excusable neglect. CRC 1615(d). The actions of counsel for plaintiff's secretary in failing to send the rejection even though she had calendared the date of rejection do not reflect reasonable office policies and does not constitute excusable neglect. Furthermore, the fact that the parties may have been discussing the case within a week of the arbitration (which was in November) is irrelevant. Whether plaintiff's mistake was "honest" is irrelevant. The mistake must be reasonable. The minute order is effective immediately. No formal order or further notice is required, the tentative ruling providing sufficient notice. *** ITEM 6 04AS00005 THOMAS COLEMAN REAVEY, JR. VS. MERCURY CASUALTY INS. Nature of Proceeding: Motion For Reconsideration Filed By: FRASER-THOMSON, IAN Defendant's motion for reconsideration is denied. There are no new facts, law, or circumstances to support this motion. On March 15, 2005 the court granted plaintiff's motion to compel responses to discovery requests and denied the request that admissions be deemed admitted because defendant served responses to the admissions before the hearing. The court declined to consider defendant's opposition filed on March 11, 2005. Even if the court were to consider the opposition now it would not change the court's ruling. Defendant's objections were wavied when it failed to provide timely responses in April 2004. Relief under CCP 473 is not available. Although the court may, in proper circumstances, grant relief from waiver of objections, the request must be made in the context of the relevant discovery statutes (e.g. CCP 2031(l)). Any such request should have been made months ago. This minute order is effective immediately. No formal order is required, the tentative ruling being sufficient notice. Department 53 April 20, 2005 Page 4 ______________ *** ITEM 7 04AS00949 KHADEEJAH ALI VS. SYNERGISTIC MANAGEMENT GROUP INC., ET AL Nature of Proceeding: Motion To Withdraw Atty of Rec Filed By: MCCANN, ROBERT E. Motion to be Relieved as Attorney of Record for defendant David Williams is unopposed and is granted. The court will sign the proposed formal order. *** ITEM 8 04AS02669 EAGLE NEST PARTNERS, ET AL VS. FORT SUTTER DEVELOPMENT CORP. Nature of Proceeding: Motion To Compel Filed By: GIGUIERE, MICHELE LOUISE Defendant's Motion to Compel Responses to Form Interrogatories and for an order the Requests for Admission be deemed admitted as to each plaintiff is unopposed and is granted. Plaintiff's counsel filed a declaration stating that responses to "interrogatories and requests for production" were supplied by Mr. Christensen. Nothing was said about the requests for admission or whether the other plaintiffs have supplied responses. However, if plaintiffs serve responses to the requests for admission before the hearing that comply with CCP 2033(f)(1), counsel for moving party shall inform the court clerk in Dept. 53 forthwith and the motion will be denied as to the requests for admission. As to the motion to compel responses to form interrogatories, compliance by each plaintiff to be without objections on or before May 2, 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 statute governing this discovery (CCP 2030k) authorizes 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. As for the requests for admission, they are hereby deemed admitted, unless plaintiffs serve responses before the hearing that comply with CCP 2033(f)(1). Plaintiffs are ordered to pay, jointly and severally, monetary sanctions to defendant in the reasonable amount of$306.30 (1 1/2 hours plus filing fee) pursuant to CCP 2033(k). Said sanctions to be paid on or before May 20, 2005. The minute order is effective immediately. No formal order or further notice is required, the tentative ruling providing sufficient notice. Department 53 April 20, 2005 Page 5 ______________ *** ITEM 9 04AS02975 FIRST AMER TITLE INS CO, ETAL VS. DONALD M. WANLAND,JR.,ETAL Nature of Proceeding: MOTION FOR PROTECTIVE ORDER Filed By: MCGEE, DANIEL D. Motion for Protective Order is granted as to Items 37, 38, 39, 40 and 41 only to the extent these requests seek the actual tax returns. The motion is otherwise denied except that the court will order a general protective order that the documents concerning the tax liens and other tax information shall be used only in connection with this litigation and shall be returned to defendant/cross-complainant at the conclusion of this litigation. Further, none of these documents are to be filed with the court unless necessary to the resolution of a motion, and then, only if Defendant receives notice so that he has an opportunity to require that such documents be filed under seal. See ruling in Item 10. Sanctions are denied. The minute order is effective immediately. No formal order or further notice is required, the tentative ruling providing sufficient notice. *** ITEM 10 04AS02975 FIRST AMER TITLE INS CO, ETAL VS. DONALD M. WANLAND, JR.,ETA Nature of Proceeding: MOTION TO COMPEL Filed By: DOYLE, CHRISTOHER H. Plaintiffs' Motion to Compel Further Responses and Production of Documents from defendants is denied as to Items 37, 38, 39, 40 and 41 to the extent those requests seek tax returns. The motion is otherwise granted. Plaintiffs issued title insurance on property that was transferred to 705 University Partners from Donald M. Wanland. Wanland and the partnership knew about a $400,000 IRS tax lien at the time the title insurance was purchased but did not disclose the tax lien to the title insurance company when the partnership asked for title insurance "ASAP." The IRS lien had been recorded but was missed by the Title company. There is good cause to produce the discovery being compelled (all documents except the tax returns sought in Items 37, 38, 39, 40, and 41.) However, defendant has not met its burden to show it met and conferred regarding production of the tax returns from 1994 to the present (Ex. 12 is insufficient). Moreover, the points and authorities and separate statement do not explain the direct relevance of these tax returns to the issues in this case. The belated discussion of the tax privilege issue in the Reply is untimely and does not comply with CCP 1005(b) and due process. This ruling is without prejudice to seeking the tax returns in the future upon a showing of good cause and direct relevance. Sanctions are denied as neither side fully prevailed. The minute order is effective immediately. No formal order or further notice is required, the tentative ruling providing sufficient notice. Department 53 April 20, 2005 Page 6 ______________ *** ITEM 11 05AS01245 ASKIA S. ASHANTI VS. CA DEPT OF CORRECTIONS Nature of Proceeding: MOT REQUEST TO FILE & ADJUDICATE FEDERAL LAWSUIT Filed By: ASHANTI, ASKIA Dropped from calendar. A party may not serve his own papers. CCP 1013(a). In any event, the court is not aware of authority that requires plaintiff to make a request to file his action in state court. It appears that the $3.00 fee for filing the action will be collected by the CDC according to the Deputy Clerk's notice in the file dated March 16, 2005. The clerk shall send a copy of the minute order to plaintiff. *** ITEM 12 05CS00465 IN RE: SHARLEEN JANICA IVEC Nature of Proceeding: Petition For Change Of Name Filed By: Continued to 04/28/2005 Continued on the court's own motion to April 28 since there was no file or moving papers available before the tentative rulings were prepared. *** ITEM 13 04AM06717 LOBEL FINANCIAL CORP. VS. ZACKARY D. WOLCOTT, ET AL Nature of Proceeding: CLAIM OF EXEMPTION Filed By: LOBEL, GARY DEAN Continued to 05/06/2005 Continued on the court's own motion to May 6, 2005 because the claim of exemption and financial statement are not in the court file. The court requests that Judgment debtor file a copy of the claim of exemption and supporting documents in Department 53 on or before April 29, 2005. The clerk is directed to mail a copy of this minute order to the parties. Department 53 April 20, 2005 Page 7 ______________ *** ITEM 14 04AM07805 PAVEL TVERETINOV, ET AL. VS. JARNAIL BASSI, ET AL. Nature of Proceeding: Motion To Compel Filed By: WATERS, KIM Defendants' Motion to Compel Responses to Interrogatories is granted. Compliance to be without obejctions on or before May 2, 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 statute governing this discovery (CCP 2030k) authorizes 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 15 04ED35423 STATE OF CALIFORNIA, ET AL VS. LORI L. LOVE Nature of Proceeding: CLAIM OF EXEMPTION Filed By: KURTTILA, J. Claim of Exemption is denied to the extent judgment creditor is entitled to $142 per pay period, up to $284 per month. Any amounts being retained in excess thereof are to be returned to the judgment creditor. Judgment debtor is not entitled to an exemption for necessities since the underlying judgment was for necessities. CCP section 706.051(c)(1). Moreover, the claim of $200 per month is unreasonable. ***