&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 21, 2005, 09:00 ITEM 1 02AS03562 FIREMANS INS. CO. VS. JAMES L. SCHAAL ET AL č Nature of Proceeding: Summary Judgment Filed By: WILLIAMS, MICHAEL R. Plaintiffs Firemen's Insurance Co. of Newark, N.J. and National Fire Insurance Co. of Hartford move for summary judgment or summary adjudication of causes of action. The complaint only states one cause of action, breach of indemnity agreement. Plaintiffs' evidence establishes that defendant and Plaintiffs National Fire Insurance Co. of Hartford and Firemans Insurance Company entered into the indemnity agreement attached as exhibit A to the Torp declaration; plaintiffs sustained losses due to SLC failing to complete projects on which plaintiffs had issued bonds on behalf of SLC; SLC failed to reimburse plaintiffs for their net losses and expenses and plaintiffs are therefore entitled to be indemnified in the sum of $4,835,406.00. Plaintiffs made demand for such sum but defendant refused to pay. Objections to Torp declaration: overruled. The motion for summary judgment is granted; see declarations of Torp and Mraz. This matter is distinguishable from San Diego Watercrafts, Inc. v Wells Fargo Bank, N.A. (2002) 102 C.A.4th 308; new evidence is not being submitted to the court; instead, the evidence already supplied is explicated. Plaintiffs' request for attorney's fees must be brought by noticed motion. C.R.C. rule 870.2. 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 21, 2005 Page 2 ______________ *** ITEM 2 02AS05236 SHAUNA K. DARMODY, ET AL VS. PAUL JOSEPH ARCURI, ET AL Nature of Proceeding: Motion To Compel Filed By: WHITMORE, LEEANN E. Plaintiffs noticed Mr. Arcuri's deposition for March 1, 2005. He failed to appear; in fact, as noted by his counsel, Mr. Arcuri's whereabouts are unknown. Nevertheless, plaintiff is mandated by statute, court rules and local rules to prosecute this case and move it forward, which means making appropriate efforts to obtain discovery. The motion to compel is granted; defendant Arcuri to attend his deposition and produce requested documents at a time, place and date to be noticed by plaintiffs. A monetary sanction of $366.05 ($195 + 36.30 + 134.75) is awarded to plaintiffs from defendant Arcuri only, for failing to appear at his deposition. 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 *** ITEM 3 04AS01716 ROBERT MARTINEZ, ET AL VS. GAB ROBBINS NO AMERI, INC., ET AL Nature of Proceeding: Demurrer Filed By: HIRSCH, CLIFFORD Continued from April 19, 2005 for oral argument only by agreement of the parties. 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 21, 2005 Page 3 ______________ *** ITEM 4 04AS02064 PREFERRED EMPLOYERS INS. CO. VS. CANTERBURY INN HOTEL, ETAL Nature of Proceeding: Motion To Compel Filed By: ROSE, PATRICK G. Dropped. *** ITEM 5 04AS03374 GRETA JORDAN VS. CAPITOL AREA DEVELOPMENT AUTHORITY Nature of Proceeding: Motion To File Amended Complai Filed By: ZAPPETTINI, PAUL R. The motion to file a first amended complaint adding the City of Sacramento as a defendant is unopposed and is granted. Plaintiff to file and serve her first amended complaint no later than Monday, May 2, 2005. The proposed first amended complaint attached to the motion will not be separately filed but will remain 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 21, 2005 Page 4 ______________ *** ITEM 6 04AS04566 MICHAEL S. ALEXANDER VS. JAY COAKLEY, SR., ET AL Nature of Proceeding: Demurrer Filed By: WILKINSON, SUSAN L. The general demurrer to the first, fourteenth and fifteenth affirmative defenses are sustained with leave to amend for failure to state facts sufficient to constitute affirmative defenses. The general demurrer to the second, third, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth and thirteenth affirmative defenses are overruled as sufficient facts are alleged. The general and special demurrers to the fourth affirmative defense are sustained with leave to amend for failure to state facts sufficient to constitute an affirmative defense and also on the ground of uncertainty. The motion to strike portions of the Fifth Affirmative defense is denied. The Court cannot determine the relevancy of the factual allegations on this motion to strike; the Court notes that the reply to the motion to strike discusses facts that are not plead and theories of foreseeability. Defendant to file and serve a first amended answer regarding his first, fourteenth and fifteenth affirmative defenses by Monday, May 2, 2005. Plaintiff to respond by Friday, May 13, 2005. 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 21, 2005 Page 5 ______________ *** ITEM 7 04AS04566 MICHAEL S. ALEXANDER VS. JAY COAKLEY, SR., ET AL. Nature of Proceeding: MOTION TO STRIKE Filed By: WILKINSON, SUSAN See ruling in item #5. *** ITEM 8 04AS04824 LARRY POSTON VS. C.C. MYERS, INC. Nature of Proceeding: Motion To Strike Filed By: NEVIS, CHRISTOPHER J. Plaintiff alleges C.C.Myers had on-site personnel at the Imola Avenue bridge who were charged with the authority and responsibility for inspecting, supervising and insuring the safety of the project and its workers. They knew the bracing, supporting and shoring of the falsework violated OSHA regulations; knew plaintiff would be working on the bridge, knew the false work supporting the bridge was inadequate to support the bridge construction project, knew the false work supporting the bridge failed to meet OSHA safety regulations and knew that persons working on the bridge could not ascertain that the bridge was in a dangerous condition. These allegations are sufficient to support a punitive damages claim; they show despicable conduct carried on by the defendant with a willful and conscious disregard of the rights or safety of others. The motion to strike is denied. Defendant to file and serve its answer no later than Monday, May 2, 2005. 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 Department 54 April 21, 2005 Page 6 ______________ *** ITEM 9 04AS04966 VICTOR RIVERA, ET AL VS. SIXELLS, ET AL Nature of Proceeding: Demurrer Filed By: BROWN, A. SCOTT Defendants The Crest at Fair Oaks, LLC; James L. Franklin, and Sixells, LLC demur to the first cause of action of the complaint. On December 17, 2004, a first amended complaint was filed. The complaint is therefore superceded and the demurrer thereto is dropped as moot. c *** ITEM 10 04CS01364 THE PEOPLE OF THE ST OF CA VS. 96 CHEVY TAHOE(SONIA CUEVA) Nature of Proceeding: MOTION FOR ORDER THAT REQUEST FOR ADM BE DMD ADM/SANCTIONS Filed By: LEONARD, STEPHANIE The admissions served on Sonia Cueva are deemed admitted unless, prior to the hearing, Ms. Cueva 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 Ms. Cueva. 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 Ms. Cueva with notice of this court's ruling no later than Thursday, April 21, 2005. c Department 54 April 21, 2005 Page 7 ______________ *** ITEM 11 04CS01364 PEOPLE OF THE STATE OF CA VS. 1996 CHREVROLET TAHOE (CUEVA) Nature of Proceeding: SUMMARY JUDGMENT Filed By: LEONARD, STEPHANIE See ruling in item #9. *** ITEM 12 05AS00064 CLEOPHAS WHITE VS. LASHER AUDI-ISUZU-DODGE, INC., ET AL Nature of Proceeding: Demurrer Filed By: BISHOP, WILLIAM D. JR. Defendants' Motion to Compel Arbitration is granted. The Court finds there is an agreement to arbitrate. The demurrer is dropped as moot. 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 *** ITEM 13 05AS01044 DAVID A. FORD VS. MARY ANN ALBON, ET AL Nature of Proceeding: MOTION TO STAY PROCEEDINGS IN PENDING ACTION UNTIL ARB COMPL Filed By: SWICKARD, AARON L. C.C.P. 1281.4 states that if a court orders arbitration of a controversy which is an issue involved in an action before a court of this State, the court in which the action is pending shall stay the action until arbitration is had or such earlier time as the court specifies. Plaintiff seeks a stay although neither this court, or any other court, ordered arbitration. Since the conditions for ordering a stay have not been met, the request is denied. The court notes the agreement among the parties states they must mediate prior to resorting to arbitration or court action and furthermore agree to arbitrate rather than having the dispute litigated in a court or jury trial. Finally, the Court notes that no proof of service of the Motion for A Stay was filed with the court. 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 Department 54 April 21, 2005 Page 8 ______________ *** ITEM 14 05CS00270 IN RE: KAYLA GRACE SIEBALD Nature of Proceeding: Petition For Change Of Name Filed By: SIEBALD, DIETER T. The Petition for Change of Name is granted. *** ITEM 15 05CS00280 IN RE: SIMON SHANG, ET AL Nature of Proceeding: Petition For Change Of Name Filed By: SHANG, SIMON The Petition for Change of Name is granted. *** ITEM 16 04AM05046 PATELCO CREDIT UNION VS. ART E. HANSON Nature of Proceeding: Summary Judgment Filed By: CAUDILL, THOMAS Plaintiff Patelco Credit Union moves for summary judgment. The undisputed evidence shows plaintiff loaned defendant $20,999 to purchase a vehicle. Defendant defaulted on the payments, turned over the vehicle, and plaintiff sold it. Pursuant to the contract, defendant is liable for the deficiency, $7,161.84 ,interest of $981.72, attorney's fees of $1,374.27, and costs of $423.30, for a total of $9,941.13. The evidence is sufficient to meet plaintiff's burden. Defendant, having failed to oppose the motion, fails to meet his burden of showing that plaintiff is not entitled to judgment or that there is a triable issue of material fact. Plaintiff's motion for summary judgment is granted; see declaration of Melvin Bell and exhibits attached thereto. The Court will execute the proposed Judgment submitted by plaintiff. 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 Department 54 April 21, 2005 Page 9 ______________ *** ITEM 17 04AM07732 HOUSEHOLD FINANCE CORP. OF CA VS. LYNN R. DEARTH Nature of Proceeding: CLAIM OF EXEMPTION Filed By: YALON, JEROME M. The claim of exemption is granted, in part. Judgment creditor may garnish $100 per month of judgment debtor's wages. If there is an appearance at the hearing, the burden of proof is on the judgment debtor. ***