&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 J. ZGRAGGEN, Clerk V. CARROLL, Bailiff April 22, 2005, 02:00 ITEM 1 00AS05581 FEDERAL INSURANCE COMPANY VS. SPINK CORPORATION Nature of Proceeding: MOT APPOINT DISCOVERY REFEREE Filed By: STEVENS, DEBRA A. Defendant Hemington Landscapes, Inc.'s Motion to Appoint a Discovery Referee is unopposed and is granted. Since the motion is unopposed, the parties are ordered to meet and confer before the hearing to discuss the feasibility of a reference under CCP 638. If the parties do not agree, the Court will order a reference under CCP 639. Appearance is required for the parties' input on a possible referee. Plaintiff Federal Insurance Company, the only party responding to the motion, agrees to the appointment of a discovery referee and requests that the court consider the input from the parties on this issue at the hearing. Appearance Required. Department 53 April 22, 2005 Page 2 ______________ *** ITEM 2 02AS01069 DIVESH SINGH VS. US ELEVATOR, ET AL Nature of Proceeding: Summary Judgment Filed By: CLAYPOOL, BRIAN E. Dropped. *** ITEM 3 02AS01213 DAVID JOHNSON, ET AL VS. GERALD JENSEN, ET AL Nature of Proceeding: MOTION FOR SANCTIONS Filed By: JOHNSON, DAVID Plaintiff's motions for sanctions under CCP 128.7 are denied. The moving party has not met the safe harbor requirements. Plaintiff in pro per seeks sanctions based on the following conduct: (1) Defendant's original Answer was unverified, and after plaintiff brought this to counsel's attention, defendant filed an Amended verified Answer that was longer than the first Answer; (2) Defendant failed to produce an "Arbitration notebook" at the judicial arbitration; (3) Defendant made new claims at judicial arbitration; (4) Defendant will not negotiate a settlement in excess of the principal amount due plaintiff for his labor; (5) Defendant did not produce discovery. None of the above conduct is sanctionable under the statues and rules relied on by plaintiff. As to any of the above conduct that is sanctionable, the Code of Civil Procedure, Rules of Court and Local Rules have specific procedures for dealing with such conduct. The court notes that the opposition was filed and served in an untimely manner, however even without the opposition the plaintiff has not met his burden to show entitlement to sanctions and the motion is denied even if the court were to not consider the opposition. The minute order is effective immediately. No formal order or further notice is required, the tentative ruling providing sufficient notice. Department 53 April 22, 2005 Page 3 ______________ *** ITEM 4 02AS01295 CHERYL WATSON VS. ELOISE HENDERSON Nature of Proceeding: Motion To Withdraw Atty of Rec Filed By: JACOBSEN, BRIAN S. Dropped. *** ITEM 5 02AS02509 DONALD M WANLAND JR, ETAL VS. L/O OF MASTAGNI, HOLSTEDT ETAL Nature of Proceeding: CLAIM OF EXEMPTION Filed By: KEREKES, KATHLEEN M. Judgment debtor's claim of exemption as to the Cadillac Escalade is continued to be heard in conjunction with the Third Party claim filed by GMAC, or April 29, 2005, whichever is sooner. The court will not rule on the claim of exemption at this time since Judge Abbott's ex parte order from April 11, 2005 stayed enforcement of the money judgment until 4 p.m. on April 29, 2005. Judgment debtor filed a claim of exemption on a vehicle levy for a 2003 Cadillac Escalade and a 2003 Mercedes Sedan. The claim of exemption as to the Mercedes is denied without prejudice, as premature. Judgment debtor claims that the Escalade is exempt based on CCP 704.010(a) (motor vehicles) and 704.060(a) (tools of the trade). Judgment debtor further claims that the vehicle is exempt because he does not own the vehicle because it is leased. Judgment debtor has attached as an exhibit a Third Party Claim of Exemption filed by General Motors Acceptance Corporation claiming ownership in the Escalade and seeking release of the Escalade to GMAC. The third party claim was served by mail on April 14, and judgment debtor states the third party claim was filed on April 14, 2005, although the court's computer system does not yet reflect filing of the third party claim. The tentative ruling is sufficient notice of the continuance. Department 53 April 22, 2005 Page 4 ______________ *** ITEM 6 02AS06055 JANE DOE, ETAL VS. STATE OF CA DEP OF CORRECTIONS, ET AL Nature of Proceeding: Motion To Compel Filed By: BURGERMYER, LESLIE A. Defendant California Department of Correction's ("CDC") Motion to compel plaintiff to respond to specific questions at her deposition on April 28 and 29 is unopposed and is granted. CDC's motion for protective order to prevent plaintiff's attorney from instructing her not to respond to questions except as to those that seek privileged information is unopposed and is granted. Plaintiff is ordered to attend her deposition on April 28 and April 29 (second day only if necessary), to respond to the questions set forth in the CRC 335 statement and to answer any follow up questions. Counsel for plaintiff is ordered to refrain from instructing her client not to respond to questions unless the information sought is privileged. CCP 2025(m)(1); See Weil & Brown, Civil Procedure Before Trial, sections 8:734 et seq. The Court notes that there is a Motion to File Record Under Seal in the file, however this motion is not on the court calendar. In the event the moving party intended it to be on calendar, the court drops the matter because the document sought to be sealed is unnecessary to the court's determination of the unopposed motion to compel responses to deposition questions. The clerk is instructed to retain the motion and sealed document in a secure location in the clerk's office to be returned to moving party at or before the time of the hearing. The request for sanctions under CCP 2023 and 2025(j)(3) is denied as the applicable code sections do not provide for sanctions if the motion is unopposed. This is not a CCP 2025(j)(3) motion because the plaintiff appeared for her deposition. The applicable code sections are CCP 2025(o) and 2025(n). Neither of these sections allow for sanctions if the motion is unopposed. Although CRC 341 purports to authorize sanctions if a motion is unopposed, the Court declines to do so, as the specific statutes governing this discovery authorize 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. Department 53 April 22, 2005 Page 5 ______________ *** ITEM 7 02AS07841 MARCUS ARMSTRONG VS. BIANCHI PLUMBING Nature of Proceeding: Motion To Dismiss Filed By: MYLES, J. MARK Continued to 04/26/2005 *** ITEM 8 03AS06007 TAMMY DILLARD VS. COUNTY OF SACRAMENTO, ET AL Nature of Proceeding: Motion For Summary Adjudicatio Filed By: HIGHTOWER, BART E Defendant Dr. Smith's Motion for Summary Adjudication of the cause of action for sexual harassment is granted. Defendant has not moved for summary adjudication as to the retaliation or intentional infliction of emotional distress claims, although the points and authorites request dismissal of "all causes of action" againts Dr. Smith. The separate statement and notice of motion are limited to the claim for sexual harassment. Plaintiff, who worked as an LVN for defendant at the Boys Ranch, alleges that she was subject to sexual harassment, gender discrimination, retaliation and intentional infliction of emotional distress in her job at the Sacramento County Boys Ranch. Dr. Smith is sued in his individual capacity. Plaintiff's cause of action for sexual harassment as to Smith is based on a single alleged comment made to her by Dr. Smith in May of 2003 asking her to give one of the wards a "blow job," after he had examined the ward for asthma. Dr. Smith then said to plaintiff "Give him a peak flow, silly." She alleges other incidents involving the conduct of other co-employees including co-defendant Bays. Plaintiff quit her job in August of 2003 and filed a DFEH complaint in Septemeber 2003. The lengthy description of the events in her FEHA complaint contains no facts concerning Dr. Smith and Dr. Smith was not named in the FEHA complaint. Summary Adjudication of the sexual harassment cause of action is granted as to Dr. Smith only on the ground plaintiff failed to exhaust her administrative remedies as to Dr. Smith, as he was not named in the FEHA complaint and no facts regarding his conduct are set forth therein to provide notice to defendants. Okoli v Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607. Plaintiff submits evidence of harassment by other employees, however this evidence does not raise a triable issue of material fact as to Dr. Smith. Summary Adjudication as to Smith on the cause of action for sexual harassment only is granted on the additional ground that his single comment made to plaintiff, although crude and offensive, does not as a matter of law suffice to state a cause of action against Mr. Smith for hostile work environment sexual harassment. Although conduct may reach the level of sexual harassment if it is severe, the single statement made to plaintiff is insufficient as a matter of law. For sexual harassment to be actionable, it must be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment. Aguilar v Avis Rent-a-Car System, Inc. (1999) 21 Cal.4th 121, 130-131. (The court does not reach the issue of whether this comment, in conjunction with the other allegations, states a cause of action for sexual harassment against the County; this ruling only concerns Dr. Smith's individual liability.) Defendant's objections to the "facts" set forth in the separate statement are not proper evidentiary objections and are overruled. In any event, the evidence in support of those facts does not raise a triable issue of fact on whether plaintiff exhausted her administrative remedies as to Dr. Smith or whether his conduct was severe enough to establish a hostile work environment. The moving defendant Dr. Smith may submit a formal order pursuant to CRC 391. However, since the claims for retaliation and intentional infliction of emotional distress was not addressed, this defendant remains in the action. Department 53 April 22, 2005 Page 6 ______________ *** ITEM 9 03AS06075 JANET BREWER, ET AL VS. LENNAR RENAISSANCE INC., ET AL Nature of Proceeding: MTN ENFORCE SETTLEMENT AGREMNT Filed By: BLAKE, KRISTIN N. Continued from April 15, 2005 for oral argument. *** ITEM 10 04AS00405 BARBARA CHAYDEZ VS. BONNIE GENTRY Nature of Proceeding: Motion To Transfer To Muni Cou Filed By: SHERGILL, AMAR Defendant's Motion to Transfer Case to Limited Jurisdiction is unopposed and is granted. The case necessarily involves less than $25,000 since the special damages are only $2800. CCP 396; Walker v Superior Court (1991) 53 Cal.3d 257. The minute order is effective immediately. No formal order or further notice is required, the tentative ruling providing sufficient notice. *** ITEM 11 04AS00591 TERESA PRESEL VS. ANTON HOLMES, ET AL Nature of Proceeding: Default Hearing Filed By: PONGRATZ, STEPHEN Request for Default Judgment is denied. There was no declaration of mailing accompanying the proof of service for the substituted service on Anton, therefore Anton has not been properly served with the 1st amended complaint. The Court will not enter a judgment when only one of the defendants has been properly served. The Court notes that the 1st amended complaint opened up the default on the original complaint and the clerk is directed, upon proper request by plaintiff, to enter default on the Amended Complaint since it opened up the default previously entered. Department 53 April 22, 2005 Page 7 ______________ *** ITEM 12 04AS00893 MIKE MASON, ET AL VS. JTS COMMUNITIES, INC., ET AL Nature of Proceeding: Motion To Quash Service Summon Filed By: LEBANGIE, MICHAEL J. Defendants Blue Lake Housing Authority Motion to Quash Service of Summons is denied as moot. Code of Civil Procedure section 418.10(a)(1). Blue Lake Housing Authority moves to quash the service of the summons and complaint on the grounds that the Court lacks jurisdiction over Blue Lake Housing Authority because it is immune from suit under the Doctrine of Tribal Sovereign Immunity. Blue Lake Housing Authority's Request for Judicial Notice is granted. While a motion to quash service of process is a proper mechanism for asserting the sovereign immunity defense, no showing has been made that Blue Lake Housing Authority was ever served. Moving party asserts that it acquired both the assets and the liabilities of defendant J&L Properties in a "de facto merger" on June 30, 2004. Moving party further asserts that as an entity organized and operated by the Blue Lake Rancheria, a federally recognized Native American Tribe, it is entitled to sovereign immunity from suit. Opposing party plaintiff asserts that Blue Lake Housing Authority has not been named as a defendant and has not been served with summons and complaint, thus no jurisdiction is asserted by plaintiff over that entity. Plaintiff asserts that J&L Properties was served with the summons and complaint based upon transactions which occurred before its dissolution. Plaintiff contends that it does not seek to recover from Blue Lake Housing Authority as the successor in interest to J&L Properties, but from the J&L Properties partnership itself. The Supreme Court has held that the statute authorizing a judgment against a partnership by service upon one partner is just as effective and applicable during the period subsequent to dissolution but prior to termination of the partnership as it is during the period before dissolution. It follows that in this cause the service of summons and complaint upon a partner individually and on behalf of the partnership vested the court with jurisdiction to render a valid and binding judgment against the partnership. Cotten v. Perishable Air Conditioners (1941)18 Cal. 2d 575, 577. If the summons and complaint have not been served, their service cannot be quashed. The Court file does not contain a proof of personal service of process. The proof of service attached to the reply brief is not proof of personal service on any entity. As the Court concurs that an advisory opinion is improper, and plaintiff does not assert jurisdiction over the moving party, the motion is denied as moot. This minute order is effective immediately. No formal order nor further notice is required, the tentative ruling providing sufficient notice. 0893203 Department 53 April 22, 2005 Page 8 ______________ *** ITEM 13 04AS02993 KATHLEEN ROSE VS. TSAR NICOULAI CAVIER, LLC ET AL Nature of Proceeding: DEMURRERS (2) Filed By: CHANDLER, JAMES P. Defendants Tsar Nicoulai Caviar, LLC and Mats Engstroms' Demurrer to the Amended Complaint is dropped as moot since the plaintiff states she is filing a 2nd amended complaint before the time of the hearing. The Court prefers ruling on the demurrer after having given plaintiff a chance to cure the defects such as failing to name all necessary parties to the quiet title and prescriptive easement causes of action. The court grants plaintiff leave to file this second amended complaint. Cross-Defendants Tsar Nicoulai Caviar, LLC and Mats Engstroms' Demurrer to the Cross-complaint of Defendants Stanley M. and Denena Berry is overruled. The parties in this action and cross-actions are adjoining landowners who dispute the validity of easements claimed by cross- defendant moving parties. The cross-complainant Berrys are owners of Lot 466. To the south of their lot is Plaintiff Kathleen Rose's lot (Denena's sister.) Immediately to the east of the Berry's lot is the Nix lot and to the east of Rose's lot is the lot owned by Tsar Nicoulai Caviar LLC ("Tsar"). Nix is alleged to have sold a portion of his lot to Tsar. The 1912 parcel map creating the lots reflects what may be construed as a ten foot easement on each lot along the adjoining property lines for ingress and egress. Cross-complainants allege that the easements granted in 1912 were never recognized by the respective owners but rather fences were constructed. However, cross-complainants state that both they and Nix granted an easement to Rose only. The Berrys allege that they have paid taxes on the entirety of their lot. The Berrys allege that cross-defendants have trespassed on their property by claiming an easement for ingress and egress along the western 20 feet of the Berry parcel and seek to enjoin them from doing so. 1st cause of action Declaratory Relief, 2nd cause of action Quiet Title, 3rd cause of action Quiet Title by Prescription, 4th cause of action Trespass and 5th cause of action Injunctive Relief: The demurrers are overruled. Each cause of action states facts sufficient to state a cause of action and none are uncertain. Cross-defendants to file an Answer to the Cross-complaint on or before May 2, 2005. The minute order is effective immediately. No formal order or further notice is required, the tentative ruling providing sufficient notice. Department 53 April 22, 2005 Page 9 ______________ *** ITEM 14 04AS03879 LOURDES NAVEA VS. METHODIST HOSPITAL, ET AL Nature of Proceeding: Default Hearing Filed By: WERNER, RICHARD Dropped. Dropped from calendar on the court's own motion as the file reflects that the defaults have been set aside. *** ITEM 15 04AS04095 CULINARY FARMS,INC. VS. STEVE MOONEY, ET AL Nature of Proceeding: Motion To Compel Filed By: VIGNOLO, ANTHONY L. Plaintiff's Motion to Compel Further Responses from Plaintiffs Steve and Mary Mooney to Form Interrogatories 17.1 and 50.1, and Special Interrogatories 2, 5, 10, 12, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24 and 25 is unopposed and is granted. Plaintiffs are ordered to serve verified responses 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 statutes governing this discovery (CCP 2030k, 2031(l)) authorize 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 statement in the Castro case at 116 Cal.App.4th 1010, 1023, n.13 is dicta. The statute in question does not provide for fees if a motion is not opposed. The minute order is effective immediately. No formal order or further notice is required, the tentative ruling providing sufficient notice. *** Department 53 April 22, 2005 Page 10 ______________ ITEM 16 05AS00065 U.S. NATIONAL LEASING VS. TOM AMBREY, ET AL Nature of Proceeding: Default Hearing Filed By: Appearance Required. *** ITEM 17 05AS01133 CATERPILLAR INC., ET AL VS. CA AIR RESOURCES BOARD Nature of Proceeding: Preliminary Injunction Filed By: MURRAY, ADAM Plaintiffs ("Manufacturers") Motion for Preliminary Injunction against defendant California Air Resources Board ("ARB") is denied. The Court rules on defendant ARB's Evidentiary Objections to plaintiff Manufacturers' evidence as follows: objections to Murray Dec., Exhs. 2 and 16; to Amdall Dec., 3:6-8, 3:15-26, 4:1-2; Scharf Dec., portions of paras. 4, 7, 10, 9; Klein Dec., portions of paras. 3, 6, 8, 9; Vujovich Dec., 1:19-20, 2:16-21, 3:1-2 are SUSTAINED; objections to Amdall Dec., 3:5-6, are OVERRULED. Moving parties have failed to include notice of the tentative ruling system in the notice of motion in compliance with C.R.C., Rule 324(a) and Local Rule 3.04(D). Counsel for moving party shall make himself available for a telephonic appearance for oral argument, should opposing party fail to give proper notice. Counsel are advised that they are expected to be familiar and comply with the Sacramento Superior Court Local Rules, which are available online at http://www.saccourt.com/geninfo/local_rules/local_rules.asp Plaintiffs' complaint is for declaratory and injunctive relief against the California Air Resources Board. The complaint alleges that plaintiffs, manufacturers of heavy-duty diesel engines, executed Settlement Agreements in 1998 with the ARB, which were entered as consent decrees and still remain in effect. Among the obligations to which plaintiffs agreed, was to install kits to reduce emissions of oxides of nitrogen (Low NOx Rebuild), on a defined group of engines at the time of normal engine rebuild. Plaintiffs allege that they have met their rebuild obligations under the Settlement Agreements, but the ARB is dissatisfied with the pace of the rebuilds and seeks to compel installation of the rebuild kits at time earlier than "normal engine rebuild." On March 21, 2005, the ARB enacted a regulation which amends 13 C.C.R. section 2011(c)(1) to provide that engines containing the injection timing strategies described in the Settlement Agreement "must not operate on highways within the State of California without a Low NOx Rebuild Kit installed." (Murray Exh. 15.) Truck owners who are not in compliance with this regulation are subject to monetary penalties. (13 C.C.R. section 2815(a)). Plaintiffs assert that these regulations violate paragraph 161 of the Settlement Agreements, which provides that "ARB shall not base a determination that any class or category of the Pre-Settlement or Interim Engine does not conform to Title 13 of the California Code section of Regulations . . . on the basis that the engine contains one or more of the injection-timing strategies as described and specified" in the Settlement Agreements. Additionally, paragraph 161 provides that compliance with the Settlement Agreements resolves all civil liability of Manufacturers and for any civil violation that could hereafter be alleged based upon the use of injection-timing strategies. Plaintiffs additionally assert that these regulations violate paragraph 69 of the Settlement Agreements, by requiring installation of the Low NOx Rebuild Kits prior to the time of engine rebuild. This option was considered and rejected at the time of negotiation of the Settlement Agreements, due to its high cost. Plaintiffs further assert that these regulations violate paragraph 71 of the Settlement Agreements, by requiring that the Low NOx Rebuild Kit be installed at no cost, even when no rebuild is performed. The Settlement Agreements provide that Low NOX Rebuild Kits will be installed "at no added cost to the owner above the amount the owner would otherwise pay to have the engine rebuilt or repaired." Plaintiffs contends that if hundreds of thousands of truckers now bring their vehicles in solely for Low NOx Rebuild Kits, and rebuilders are forced to give Low NOx Rebuilds preference over other service, because penalties will be incurred if the Low NOx Rebuild Kit is not installed, the costs become significant. Plaintiffs seek a declaration that the Settlement Agreements bar these unilateral changes to the rebuild program and seek specific enforcement through a Preliminary Injunction barring ARB from breaching or otherwise modifying the agreements. In deciding whether to issue a preliminary injunction, a court must weigh two "interrelated" factors: (1) the likelihood that the moving party will ultimately prevail on the merits and (2) the relative interim harm to the parties from issuance of the injunction. The greater the plaintiff's showing on one, the less must be shown on the other to support an injunction. Butt v. State of California (1992) 4 Cal. 4th 668, 677-678. A preliminary injunction may not be granted, regardless of the balance of interim harm, unless it is reasonably probable that the moving party will prevail on the merits. San Francisco Newspaper Printing Co. v. Superior Court (1985) 170 Cal. App. 3d 438, 442. Manufacturers assert that they are almost certain to succeed on their claims for declaratory judgment and enforcement of the Settlement Agreements. ARB's regulation determines that Manufacturers' engines do not comply with California law and impose a mandatory installation of the Low NOx Rebuild Kits, breaching the Settlement Agreements under which ARB gave up the right to take such action. A settlement contract has the attributes of a judgment in that it serves to bar reopening of the issues settled. Absent a fundamental defect in the agreement itself the terms are binding on the parties. A. J. Industries, Inc. v. Ver Halen (1977) 75 Cal. App. 3d 751, 759. Manufacturers assert that they face irreparable harm to their reputations and customer good will if thousands of truck owners are told their engines are "defective" and subject to mandatory recall and repair, new inspection requirements and civil penalties of $300-$800 per engine for non-compliance. Truck owners will be harmed by millions of dollars of downtime costs and penalties. Moving party Manufacturers seek and injunction preventing the immediate implementation of ARB's regulation, contending that it is necessary to preserve the status quo, as the first compliance deadline for the regulation is June 30, 2005, for 35,000 to 45,000 trucks. If a preliminary injunction is not granted, the regulation will be implemented and the Low NOx Rebuild Program set forth in the Settlement Agreements will be lost before this action can be determined. Plaintiffs assert that an injunction against the implementation of the regulation is necessary to prevent irreparable injury, from the denial of the benefits of the bargain the Manufacturers reached with the ARB, without compensating the Manufacturers for the civil penalties and other benefits already paid to the ARB of about $37 million. Further, the fact of the ARB's breach of the Settlement harms the Manufacturers, as their ability to resolve matters with the ARB in the future will be harmed if the ARB is not forced to comply with its agreements. The importance of preliminary injunctive relief is heightened in this case by the unavailability of money damages, due to sovereign immunity, should the Manufacturers prevail on the merits of their case. Entergy Ark., Inc. v. Nebraska (8th Cir., 2000) 210 F.3d 887, 899. In opposition, defendant ARB contends that an injunction cannot be granted to prevent the execution of a public statute by officers of the law for the public benefit. Code of Civil Procedure section 526(b)(4), Civil Code section 3423(d). For the purpose of the application of these provisions, a regulation adopted by a state administrative agency pursuant to a delegation of rulemaking authority by the Legislature has the force and effect of a statute. Agricultural Labor Relations Board v. Superior Court of Tulare County (1976) 16 Cal. 3d 392, 401. The basis for these statutory provisions is to be found in the doctrine of separation of powers of government into three independent departments. A court acts in excess of its jurisdiction if it attempts to enjoin the enactment or enforcement of a valid public statute or ordinance. Los Angeles v. Superior Court of County of Los Angeles (1959) 51 Cal. 2d 423, 430. With all presumptions favoring the validity and constitutionality of the enactments of various legislative bodies, it should be only under extraordinary circumstances that anyone challenging the validity of such a law should immediately be granted the ultimate relief he seeks prior to any trial on the merits. Santa Monica v. Superior Court of Los Angeles County, 231 Cal. App. 2d 223, 226 (Cal. Ct. App., 1964) Exceptions to this rule apply if the statute/regulation is void or unconstitutional, but neither argument has been made by moving party Manufacturers. The request for preliminary injunction must be denied. Prevailing party defendant shall submit a formal order for the Court's signature, pursuant to C.R.C., Rule 391. 1133203 Department 53 April 22, 2005 Page 11 ______________ *** ITEM 18 05CS00285 IN RE: YOLANDA ADALI MARQUEZ Nature of Proceeding: Petition For Change Of Name Filed By: MARQUEZ, YOLANDA Petition for Name Change is granted on condition proof of publication is filed in Department 53 before the time set for hearing. *** ITEM 19 03AM04749 VERONIKA VOROBYOU VS. KENNETH OSBORN, ET AL Nature of Proceeding: Motion To Compel Filed By: MILLER, R. JAMES Defendant Rodney Osborn's Motion to Compel Responses to Form and Special Interrogatories is unopposed and is granted. Plaintiff is ordered to serve verified (under oath) responses to the discovery on defendant on or before May 12, 2005. The minute order is effective immediately. No formal order is required, however defendant shall mail a copy of the minute order to plaintiff forthwith. *** ITEM 20 04AM09491 DISCOVER BANK, ET AL VS. SHEILA KOHLER, ET AL Nature of Proceeding: DEMURRER/MOT QUASH Filed By: KOHLER, SHEILA The Demurrer to the Complaint is overruled. Defendants have not stated any ground which is a proper ground for a demurrer. Failure to properly serve a summons and complaint is not the basis for a demurrer. CCP 430.10. The Motion to Quash on the ground the service was not proper under CCP 415.10 et seq. is denied. There is no admissible evidence submitted that the person who received the documents at the residence was a minor, or that there was no mailing subsequent to the substituted service. Although the declaration of William G. Kohler is notarized, it is insufficient. First, the notory only certified that Mr. Kohler was the person who signed the document, and not that he swore under oath that the facts therein were true. Second, the statement does not qualify as a declaration since it is is not in the proper form and does not comply with CCP 2015.5 Defendants are ordered to file and serve an Answer to the complaint on or before May 2, 2005. The minute order is effective immediately. No formal order or further notice is required, the tentative ruling providing sufficient notice. Department 53 April 22, 2005 Page 12 ______________ ***