&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 AMOUNT S 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 21, 2005, 02:00 ITEM 1 02AS01197 GWENDOLYN SIMPSON VS. DAVID M. PETERSON, ET AL Nature of Proceeding: MOTION FOR ENTRY OF JUDGMENT Filed By: FINCH, GREGORY M. Plaintiff's motion for entry of judgment pursuant to CCP 664.6 is unopposed and granted. Plaintiff shall submit a formal order and judgment. *** ITEM 2 03AS02813 LOIS M. COPLEA VS. DAVID ROMO, ET AL Nature of Proceeding: MOTION FOR ENTRY OF JUDGMENT Filed By: PROAPS, RICHARD A. Plaintiff Coplea's Motion for Order for Entry of Judgment for Breach of a Written Settlement Agreement is granted. This motion was continued from April 7, 2005, to permit the Court to review the written settlement agreement, which has now been received and reviewed. Plaintiff Coplea's "Notice of Intent to Have Confidential Settlement Agreement Placed [Under Seal] in Public Court File is denied. Moving party must comply with the requirements of California Rules of Court, Rule 243.2, which include the filing of a motion for an order sealing the record. The motion or application must be accompanied by a memorandum of points and authorities and a declaration containing facts sufficient to justify the sealing. The papers filed with the Court are not in compliance with that Rule of Court. Plaintiff moves to enforce the confidential written settlement agreement entered into between Marty Coplea, Parker King & Assoc. LLC and Lois Coplea (Collectively "Coplea") and Sycamore Ventures, LLC, David Romo and Stacey Romo (collectively "Romo") on in mid-February 2004. The agreement provides that in the event of default in the payment of the sums due on or before February 18, 2005, judgment may be entered ex parte, under Code of Civil Procedure section 664.6. However, this Court ordered the parties to proceed by noticed motion. Moving party Coplea asserts that Romo defaulted in the payment of the sums due on or before February 18, 2005. The final payment due was not made. (Coplea Dec. para. 2.) Opposing party Romo asserts that the Agreement should not be enforced as written, as the Settlement Agreement, if not paid in full within one year, provides for an unconscionable enhancement of one million five hundred additional dollars ($1,500,000.00) on a total settlement of three million dollars ($3,000,000.00), or a 50 percent enhancement penalty. Civil Code section 1670.5 provides that the Court prior to finding the contract or any clause thereof unconscionable, shall afford the parties a reasonable opportunity to present evidence as to the contract's commercial setting, purpose, and effect to aid the court in making the determination. The Court does not permit oral evidence in law and motion matters, however. No written declarations in support of the elements of unconsionability have been provided other than the Romo Declaration. The Romo opposition papers, filed March 29, 2005, represent that the defendant will pay the balance in full within three weeks. The Court has received no supplemental declaration representing that the balance due has actually been paid. The Court does not find that as a matter of law, the Settlement Agreement, or any clause of it was unconscionable at the time it was made. The Settlement Agreement is not illegal, nor has opposing party shown that it is against public policy. Civil Code section 1671(b) provides that a provision in a contract liquidating the damages for the breach of the contract is valid unless the party seeking to invalidate the provision establishes that the provision was unreasonable under the circumstances existing at the time the contract was made. As opposing party Romo has failed to meet this burden, the Court declines to find the penalty unconscionable. Moving party Coplea shall submit a formal order and Judgment, pursuant to California Rules of Court, Rule 391. 2813203 Department 53 April 21, 2005 Page 2 ______________ *** ITEM 3 03AS03237 MARTY R. COPLEA, ET AL VS. DAVID ROMO, ET AL Nature of Proceeding: MOTION FOR ENTRY OF JUDGMENT Filed By: PROAPS, RICHARD A. Plaintiff Coplea's Motion for Order for Entry of Judgment for Breach of a Written Settlement Agreement is granted. This motion was continued from April 7, 2005, to permit the Court to review the written settlement agreement, which has now been received and reviewed. Plaintiff Coplea's "Notice of Intent to Have Confidential Settlement Agreement Placed [Under Seal] in Public Court File is denied. Moving party must comply with the requirements of California Rules of Court, Rule 243.2, which include the filing of a motion for an order sealing the record. The motion or application must be accompanied by a memorandum of points and authorities and a declaration containing facts sufficient to justify the sealing. The papers filed with the Court are not in compliance with that Rule of Court. Plaintiff moves to enforce the confidential written settlement agreement entered into between Marty Coplea, Parker King & Assoc. LLC and Lois Coplea (Collectively "Coplea") and Sycamore Ventures, LLC, David Romo and Stacey Romo (collectively "Romo") on in mid-February 2004. The agreement provides that in the event of default in the payment of the sums due on or before February 18, 2005, judgment may be entered ex parte, under Code of Civil Procedure section 664.6. However, this Court ordered the parties to proceed by noticed motion. Moving party Coplea asserts that Romo defaulted in the payment of the sums due on or before February 18, 2005. The final payment due was not made. (Coplea Dec. para. 2.) Opposing party Romo asserts that the Agreement should not be enforced as written, as the Settlement Agreement, if not paid in full within one year, provides for an unconscionable enhancement of one million five hundred additional dollars ($1,500,000.00) on a total settlement of three million dollars ($3,000,000.00), or a 50 percent enhancement penalty. Civil Code section 1670.5 provides that the Court prior to finding the contract or any clause thereof unconscionable, shall afford the parties a reasonable opportunity to present evidence as to the contract's commercial setting, purpose, and effect to aid the court in making the determination. The Court does not permit oral evidence in law and motion matters, however. No written declarations in support of the elements of unconsionability have been provided other than the Romo Declaration. The Romo opposition papers, filed March 29, 2005, represent that the defendant will pay the balance in full within three weeks. The Court has received no supplemental declaration representing that the balance due has actually been paid. The Court does not find that as a matter of law, the Settlement Agreement, or any clause of it was unconscionable at the time it was made. The Settlement Agreement is not illegal, nor has opposing party shown that it is against public policy. Civil Code section 1671(b) provides that a provision in a contract liquidating the damages for the breach of the contract is valid unless the party seeking to invalidate the provision establishes that the provision was unreasonable under the circumstances existing at the time the contract was made. As opposing party Romo has failed to meet this burden, the Court declines to find the penalty unconscionable. Moving party Coplea shall submit a formal order and Judgment, pursuant to California Rules of Court, Rule 391. 3237203 Department 53 April 21, 2005 Page 3 ______________ *** ITEM 4 03AS03269 CONDON-JOHNSON & ASSOCIATES,INC. VS. SMUD Nature of Proceeding: Motion To Compel Filed By: WESTON, MARLA R. Defendant SMUD's motion to compel completion of the deposition of plaintiff's expert witness is granted. The parties shall follow the procedures of CCP 2034 (i). The expert's deposition was originally noticed for January 21, 2005 and was timely with respect to the trial date of February 7, 2005. To accomodate the witness, the parties agreed to conduct the deposition on January 31, 2005. The trial has now been continued to June 20, 2005. Defendant is not required to move to reopen discovery. The deposition did not occur until after discovery was closed and at the end of the day it was not completed. A motion to compel completion of the deposition is the proper procedure. There is no rule that requires an expert's deposition to be completed in one day. SMUD has not unreasonably delayed in making this motion. It attempted several times to get plaintiff to agree to a date to complete the deposition. The parties shall meet and confer on an mutually convenient date for the deposition. Sanctions are denied. This minute order is effective immediately. No fomal order is required, the tentative ruling being sufficient notice. *** ITEM 5 03AS03547 PREMIER INDUSTRIES, INC., ET AL VS. WEST COAST COMPANY ET AL Nature of Proceeding: MOTION TO SET ASIDE DEFAULT Filed By: FERRIS, FRANK J. Continued to 05/05/2005 Department 53 April 21, 2005 Page 4 ______________ *** ITEM 6 03AS04813 ALINE MEMS THOMAS VS. BARBARA BAIRFIELD, ET AL Nature of Proceeding: Summary Judgment Filed By: GOROG, STEPHEN J. The motion for summary judgment of Paul Carl and Carl & Associates (Carl) is treated as a motion for judgment on the pleadings and it is granted with leave to amend. The Carslakes sold the real property to Bairfield who then rented it to plaintiff. Plaintiff filed this action against owner/buyer Bairfield and prior owners/sellers the Carslakes alleging personal injury due to the presence of mold. The Carslakes then cross complained for equitable indemnity, apportionment, and declaratory relief against Carl who acted as broker for the Carslakes. Plaintiff has not made any claims against Carl. The Carslakes and Carl are not jointly and severally liable and there is no basis for indemnification. Munoz v Davis 141 Cal App.3d 420, 425. In their opposition the Carslakes argue they were never given copies of Hamilton's pest report or Hamilton's notice of completion and non-completion. They also assert that Carl performed some repairs. The declarations of the Carslakes are more notable for what they do not state than for what they do state. Both declare they were never given copies of the reports until this complaint was filed. They do not declare they did not know of the reports, or that they were unaware of their contents. The only evidence of repairs is Carl's invoice but it does not indicate if those repairs were related to the mold conditions. The Carslakes appear to be arguing a breach of fiduciary duty and negligent repair by Carl. The facts alleged suggest a remote possibility that the Carslakes may be able to state a cause of action based on some other theory. Therefore, they are given leave to amend. Cross-complainants may file and serve an amended cross-complaint by May 2, 2005. The Carslakes objection to Carl's declaration is sustained, nevertheless it has been considered. The objection is based on the fact it is not dated. Since this omission is easily corrected, the court has considered the declaration on the assumption that Carl will submit a dated declaration before the time of the hearing. The court orders that the moving party submit a dated and signed declaration prior to the hearing. This minute order is effective immediately. No formal order is required, the tentative ruling being sufficient notice. Department 53 April 21, 2005 Page 5 ______________ *** ITEM 7 03AS05475 MARCIA A. EDGAR VS. SACTO ROOFING CO., INC., ET AL Nature of Proceeding: Motion To Compel Filed By: JAFFE, JROGER V. Defendant's Motion to Compel Further Responses to Special Interrogatories is unopposed and granted. None of the interrogatories are vague and ambiguous and none appear to implicate the attorney work product privilege. Further answers shall be provided by May 2, 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 2030(k), 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 03AS06263 CHERYL LYNN POMEROY VS. LUIS' MEXICAN FOODS RESTAURANT Nature of Proceeding: Default Hearing Filed By: O'DONNELL, DANIEL G. Dropped. *** ITEM 9 04AS02725 HARVEY GREER, ET AL VS. KARL JAKOB, ET AL Nature of Proceeding: Motion For Judgment On Pleadin Filed By: MOONEY, DONALD B. Dropped. Department 53 April 21, 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 Defendant's motion to compel production is granted. The parties have agreed on some areas but disagree on the scope of others. The parties agree on the following: (1) The search will be limited to the policies issued under the NPS program, approximately 925-950 policies. (2) Plaintiff will produce a list of all of the policies under the under the NPS program. (3) Defendant will select 100 entities from the list. Plaintiff seeks to limit the scope of the files to be produced. Plaintiff shall produce all claims files and policies for the selected entities. The parties agree that plaintiff will ask its employees to inquire as to prior or current disputes regarding the GL2501 endorsement. Plaintiff wishes to limit the inquiry to claims managers only and to email messages only. Plaintiff shall direct managers, claims handlers, and the underwriting department to make this inquiry and direct these employees to search their computers and email systems. This inquiry will reflect defendants proposal in item 5 of defendant's letter of March 29, 2005. Plaintiff shall provide further responses and produce documents responsive to defendant's requests one and two, operative policies and sub policies, if it has not yet done so. In light of the parties' efforts to come to an agreement, the court declines to order sanctions. This minute order is effective immediately. No formal order is required, the tentative ruling being sufficient notice. *** Department 53 April 21, 2005 Page 7 ______________ ITEM 11 04AS03015 RUFUS SPEAKS VS. RYLAND HOMES, INC. Nature of Proceeding: Demurrer Filed By: FANADY, KIMBERLY A. Defendant's demurrer to the first cause of action, breach of contract, second cause of action, negligent supervision, fourth cause of action, construction defects and the eighth, ninth, and 11th causes of action for breach of express and implied warranties is sustained without leave to amend on the ground that various statutes of limitations bar these claims. Plaintiff purchased the house in June 1994 when construction was completed. This action was not filed until July 2004. These causes of action are all barred by CCP Section 337.15, 10 years for actions to recover damages from latent deficiencies. Here the alleged deficiency was a roof that leaked. Although defendant made repairs in 1995 and 1996, the 10 year statute of limitations is not tolled during periods of repair. Lantz v Centex Homes (2003) 31 Cal.4th 363, 388. Other statutes of limitations also apply. For negligence the statute is two years, CCP Section 339. Breach of contract claims must be asserted within four years. CCP Section 337. The three year statute for tortious injury to real property or an action upon a liability created by statute bars the fourth cause of action. The claims for breach of warranty are barred by CCP Sections 337, 338, and 339. The demurrer to the fifth, sixth, and seventh causes of action for negligence, negligence per se, and strict liability in tort is sustained with leave to amend on the ground of uncertainty. Any claims related to construction defects are barred by Section 337.15. However,plaintiff also alleges personal injury. He has not alleged when he discovered mold, when he first experienced physical problems, or when he learned or suspected his physical problems were linked to mold in the house. In his opposition, plaintiff argues he should be given leave to amend his breach of warranty claims because the roof had a 15 year warranty. This is irrelevant. To assert a claim for breach of warranty plaintiff must bring the action within two or four years of the breach. Plaintiff also argues that he should not be required to plead times related to the fifth, sixth, and seventh causes of action. He states that he alleged defendant gave him a report detailing the mold infestation in April 2004. The fact that he received the report then does not necessarily mean he first learned of mold then and it does not mean that is when he first experienced physical problems. Plaintiff must remove any claims for property damage from these causes of action and plead with greater specificity pertinent times related to personal injury. Plaintiff may file and serve a second amended complaint by May 2, 2005. Responsive pleadings shall be filed 10 days thereafter, 15 days if service is by mail. If defendant demurs to the second amended complaint, the court requests that it attach a copy of the second amended complaint to the demurrer, although it is not required to do so. This minute order is effective immediately. No formal order is required, the tentative ruling being sufficient notice. Department 53 April 21, 2005 Page 8 ______________ *** ITEM 12 04AS03015 RUFUS SPEAKS VS. RYLAND HOMES, INC. Nature of Proceeding: MOTION TO COMPEL Filed By: KIPPERMAN, STEVEN M. Defendant's motion to compel further answers to form and special interrogatories is granted. Plaintiff served answers on September 27, 2004 and further answers on March 3, 2005. The answers are insufficient and in some cases non-responsive. Further answers shall be provided by May 2, 2005. Plaintiff further answered special interrogatories 15, 17, and 20 by stating the interrogatories were inapplicable because his amended complaint did not contain a cause of action for misrepresentation. The interrogatories were propounded before the amended complaint was filed. Defendant is entitled to know who made representations to plaintiff and how he relied. Even if plaintiff had never alleged misrepresentation, defendant is entitled to ask him about conversations he had when negotiating the purchase of the house. The information sought has at least some relevancy to the amended complaint or may lead to relevant evidence. Plaintiff's contention that defendant did not meet and confer is not supported by the evidence. Plaintiff is also wrong when he asserts the motion is untimely. The motion is directed at the supplemental responses served on March 7, 2005 and it is timely. Mandatory monetary sanctions in the amout of $1,536.30 (5 hours) is imposed against Plaintiff for filing an opposition without substantial justification. This minute order is effective immediately. No formal order is required, the tentative ruling being sufficient notice. *** ITEM 13 04AS03181 ANITA RIGGS VS. ACTION ENVIRONMENTAL, ET AL Nature of Proceeding: Demurrer Filed By: WALTER, KRISTEN L. Continued to 04/25/2005 Department 53 April 21, 2005 Page 9 ______________ *** ITEM 14 04CS01391 HARRAH'S OPERATING CO., INC., ET AL VS. MICHAEL J. MOORE Nature of Proceeding: OSC RE: SALE FO DWELLING Filed By: STEARMAN, JAMES A. The Court will issue an order to show cause to the judgment debtor why the court should not order sale of the subject property. The petitioner shall prepare the formal order to show cause for the court's signature and select the date of hearing, noting that proof of service on the judgment debtor must be filed showing service at least 30 days prior to the time set for hearing. See CCP section 704.770. Appearance Required. *** ITEM 15 05CS00271 IN RE: CONRAD W EVANS Nature of Proceeding: Petition For Change Of Name Filed By: EVANS, CONRAD W. Granted. *** ITEM 16 05CS00273 IN RE: MICHAEL DESHONE DIXON Nature of Proceeding: Petition For Change Of Name Filed By: DIXON, MICHAEL D. Continued to May 15, 2005. Petitioner's explanation for seeking a name change is because petitioner "needs identification" and "needs a job." Left unexplained is why he cannot obtain identification and a job with his present name. Petitioner must file a supplemental declaration with more detailed reasons for why he wants to change his name. Petitioner shall file the declaration in Department 53 by May 10, 2005. *** Department 53 April 21, 2005 Page 10 ______________ ITEM 17 03AM10957 HENNA NASEEM VS. NINA BRASIER Nature of Proceeding: Motion To Compel Filed By: SHARPE, LINDA J.L. Dropped. ***