&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 AMO UNTS 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 25, 2005, 02:00 ITEM 1 02AS03731 RANDY UTZ, ET AL VS. RICHMOND AMERICAN OF CALIFORNIA, INC. Nature of Proceeding: MOTION FOR GOOD FAITH SETTLEMENT Filed By: LEARY, PATRICIA Cross-defendant Air Design's motion for a determination that its settlement with Defendant Richmond Homes is in good faith is granted, Air Design provided sheet metal for the roof. Cross-defendant Zimmerman was the roofing subcontractor and has filed an opposition to the motion. Zimmerman contends Air Design has failed to show how the settlement is allocated. Richmond's expert allocated subcontractor cross-defendants a total of $440,000 for all four plaintiffs. He allocated 13.6% to roofing and sheet metal issues and allocated 50% to Zimmerman and 50% to Air Design for a total of $30,000 to each. Air Design proposes to settle for $20,000. Air Design had previously settled a subrogation action by Richmond for $12,000 and a release by Richmond. Richmond had brought that action to recover the cost of repairs at several of its developments following El Nino rains. The Utz home was included in one of those developments. Air Design believes it would prevail on summary judgment based on the earlier release but it is willing to settle this action to avoid the costs of continued litigation. The court finds the settlement fairly reflects Air Design's proportionate share of liability, is not collusive and is in good faith. The court will sign the proposed order submitted with the moving papers. Department 53 April 25, 2005 Page 2 ______________ *** ITEM 2 02AS05785 MANDEEP "MINDY" KAUR KUMAR, ETAL VS SUSAN LEA HUGHES-ROY, ET Nature of Proceeding: Summary Judgment Filed By: SHARPE, LINDA J.L. Defendants Nathen and Lester Lam's Motion for Summary Judgment is denied. Opposing party Hughes-Roy's separate statement is not is compliance with California Rules of Court, Rule 342(f), which requires that: "Each material fact claimed by the moving party to be undisputed must be set out verbatim on the left side of the page, below which must be set out the evidence said by the moving party to establish that fact, complete with the moving party's references to exhibits. On the right side of the page, directly opposite the recitation of the moving party's statement of material facts and supporting evidence, the response must unequivocally state whether that fact is `disputed' or `undisputed.' An opposing party who contends that a fact is disputed must state, on the right side of the page directly opposite the fact in dispute, the nature of the dispute and describe the evidence that supports the position that the fact is controverted. That evidence must be supported by citation to exhibit, title, page, and line numbers in the evidence submitted." The complaint for personal injuries arises from a three-car motor vehicle accident. Plaintiffs Kumar were stopped in traffic, when they were hit from behind by co-defendant Hughes-Roy. Hughes-Roy's vehicle was subsequently hit from behind by moving parties Lam. Plaintiffs felt only one impact to the rear of their vehicle, although Hughes-Roy asserts that when her vehicle was hit by the Lam vehicle, she was pushed into the plaintiff's vehicle, causing a second impact. Defendants Lam assert even if the Lam vehicle pushed the Hughes-Roy vehicle into plaintiff's vehicle a second time, the impact was so minor that it count 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. *** 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 exc1¶x Case transferred to Department 54 *** ITEM 6 04AS02383 TIMBERLAKE OWNERS ASSOC. VS. PATTI MURPHY Nature of Proceeding: MOTION FOR SANCTIONS Filed By: EPSTEIN, BRADLEY J. Plaintiff's motion for terminating sanctions is unopposed and granted. Defendant did not respond to discovery requests, did not oppose plaintiff's motion to compel and has willfully disobeyed the court's order of January 21, 2005. Terminating sanctions are justified. Defendant's answer is ordered stricken. Plaintiff may seek a default and default judgment through the usual procedures. This minute order is effective immediately. No formal order is required, the tentative ruling being sufficient notice. Department 53 April 25, 2005 Page 4 ______________ *** ITEM 7 04AS02963 MICHAEL KEITH MOSELEY VS. CA HEALTH AND HUMAN SRVS AGY, ETAL Nature of Proceeding: MOTION FOR SANCTIONS Filed By: REAGER, GLENDA N. Continued to 05/02/2005 *** ITEM 8 04AS03103 PATRICIA RAZAGHZADEH, ET AL VS. DETROIT MICHIGAN J. BENSEN Nature of Proceeding: Motion To Compel Filed By: SATO, KRISTIN Dropped. Defendant's motion to compel plaintiffs to respond to discovery requests is unopposed and granted. Compliance without objections shall be by May 5, 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 statutes governing this discovery, CCP 2030(k) and 2031(l), authorize 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. *** Department 53 April 25, 2005 Page 5 ______________ ITEM 9 04AS03181 ANITA RIGGS VS. ACTION ENVIRONMENTAL, ET AL Nature of Proceeding: Demurrer Filed By: WALTER, KRISTEN L. Defendant 7-H Technical Services Group, Inc.'s Demurrer to Plaintiff`s Verified Amended Complaint is SUSTAINED, without leave to amend. Defendants' Requests for Judicial Notice are GRANTED. The complaint alleges five causes of action against defendant Bragg: the 1st cause of action for negligence, the 2nd cause of action for nuisance, the 3rd cause of action for breach of contract, the 4th cause of action for misrepresentation and the 5th cause of action for negligent infliction of emotional distress, in connection with two separate sewage spills at the Malotte Manufacturing Co., in Lincoln, California, where plaintiff was employed, on May 6, 2002 and July 15, 2002. Plaintiff alleges that 7-H Technical Services Group, Inc. was the operator of the City of Lincoln's sewer system and sewer treatment plant. Plaintiff alleges that she was "sickened" by each of the two spills, and at some time prior to July 30, 2002 complained to her physician about her symptoms. On August 15, 2002, she was advised that her liver was compromised and her physician believed it was caused by the sewage spill. Seven-H demurs on the ground that all causes of action are barred by the statue of limitations. Code of Civil Procedure section 312. A personal injury action is governed by the two year statute of limitations. Code of Civil Procedure section 335.1. The original complaint was filed August 5, 2004, two years and 21 days after the second spill. In ruling upon the applicability of a statute of limitations, it has been recognized that courts will look to the nature of the rights sued upon rather than to the form of action or to the relief demanded. Neither the caption, form, nor prayer of the complaint will conclusively determine the nature of the liability from which the cause of action flows. Instead, the true nature of the action will be ascertained from the basic facts Rivas v. Safety-Kleen Corp. (2002) 98 Cal. App. 4th 218, 229. The basic facts alleged are that plaintiff was injured by the sewage spills. The allegations of 1st cause of action for negligence, the 2nd cause of action for nuisance(which intermingles the torts of negligence and nuisance) and the 5th cause of action for negligent infliction of emotional distress all are covered by the personal injury statute of limitations. Plaintiff's causes of action accrued on the dates of the spills, as plaintiff was on inquiry notice due to her injury at the time of the spills The plaintiff need not be aware of the specific facts necessary to establish the claim, the limitations period begins once the plaintiff has notice or information of circumstances to put a reasonable person on inquiry. Jolly v. Eli Lilly & Co. (1988) 44 Cal. 3d 1103, 1110-1111. As plaintiff was on notice of her injury from the dates of each spill, the statue of limitations has run. The demurrer is sustained, without leave to amend. In the 3rd cause of action for breach of contract, plaintiff alleges that she is the third party beneficiary to the contract between the City of Lincoln and 7-H, entitling her to damages for breach of that contract. Plaintiff has failed to plead sufficient facts to show that she was an intended third party beneficiary. Civil Code section 1559 excludes enforcement of a contract by persons who are only incidentally or remotely benefited by it. Bancomer v. Superior Court (1996) 44 Cal. App. 4th 1450, 1458. As plaintiff was not even a resident of the City of Lincoln, she could not have been an intended beneficiary of the contract. Further tort damages for breach of contract were not within the contemplation of the parties to the contract. Similarly, the demurrer to the 4th cause of action for misrepresentation is sustained. The pleading of deceit lacks the required particularity, and cannot be cured by amendment, as deceit presupposes a relationship giving rise to a duty to disclose. Here, no such relationship can be alleged. The 4th cause of action must be treated as another form of negligence, and must fall with the other causes of action as barred by the two year statute of limitations. The Court is unpersuaded that the plaintiffs' causes of action should be equitably tolled due to her flu-like symptoms. Code of Civil Procedure section 352(a). Defendant 7-H shall submit a formal order and judgment of dismissal. 3181203 Department 53 April 25, 2005 Page 6 ______________ *** ITEM 10 04AS03201 SCOTT BOLLINGER VS. CA DEPT. OF CORRECTIONS, ET AL Nature of Proceeding: Demurrer Filed By: TELFORD, JUSTIN N. The demurrer of CDC to the first cause of action, whistleblower retaliation in violation of Government Code Section 8547 (WPA), is sustained without leave to amend. Plaintiff was required to comply with Government Code Section 945.4 and he did not. Plaintiff contends he is not required to comply with the Tort Claims Act because a claim for violation of the WPA is exempt from the claims requirement. He relies on case law holding that no tort claim is required when bringing a claim for violation of FEHA. The claim procedures, investigation, and determination of right to sue of FEHA are similar to, and serve a similar purpose of, the procedures of the Tort Claims Act. The WPA does not have such procedures or remedies. It merely provides for a statutory claim for damages by a person who suffers retaliation after reporting improper governmental activitiy. The only requirement before bringing an action for violation of the WPA is that the plaintiff file a complaint with the SPB and that the SPB issues or fails to issue findings. Plaintiff is not excused from filing a tort claim simply because the public entity has knowledge of the facts on which the claim is based. City of San Jose v Superior Court (1974) 12 Cal.3d 447, 455. Defendant has also argued that plaintiff failed to allege retaliation in his complaint to the SPB. He argues he did because he refers to "other whistleblower violations" in pargraph 19. Whether he could "beef up" this vague allegation with supporting facts need not be addressed in light of the fact that he has not complied with the Tort Claims Act. Defendant shall submit a formal order and judgment of dismissal. *** Department 53 April 25, 2005 Page 7 ______________ ITEM 11 05AS00655 FINANCIAL PACIFIC LEASING, LLC VS. MIKE WARD, ET AL Nature of Proceeding: Writ Of Attachment Filed By: IEZZA, NICK I. Dropped. There is no proof of service of the summons and complaint or the application in the court's file. CRC Rule 317(c). *** ITEM 12 05CS00191 NANCY IBBOTSON VS. MBNA AMERICA BANK Nature of Proceeding: Petition To Confirm Arb Award Filed By: IBBOTSON, NANCY The petition to confirm the award is denied. The agreement between the parties requires arbitration before the National Arbitration Forum. Petitioner unilaterally chose Solomon Arbitration Group. Respondent objected and did not participate in the arbitration and the arbitrator issued an award in favor of petitioner. The court is not bound by the decision of a West Virginia court that found a contract with an arbitration clause designating NAF unconscionable. Whether the arbitration clause in this contract is unconscionable is not an issue properly before the court. If petitioner believes it is unconscionable, her remedy is to petition the court to compel arbitration in a forum other than NAF. Or if MBNA petitions to compel arbitration, she may oppose that petition on the ground the arbitration clause is unconscionable. This minute order is effective immediately. No formal order is required, the tentative ruling being sufficient notice. *** ITEM 13 05CS00217 IN RE: SETTLEMENT FUNDING, ET AL Nature of Proceeding: PET TRANSFER SETTLMENT PAYMENT Filed By: EASON, MATTHEW R. Transferor is permanently and totally disabled as a result of a failure to diagnose and treat his heart condition. His malpractice claim was settled in 2001. A part of the settlement provides him with monthly payments of $3,000 with a 3% increase each year. Transferor wishes to transfer a portion of the monthly payments. He proposes to transfer $1,130 of the July and August 2005 payements and $1,163 of the remaining monthly payments through August 2011. The aggregate value of the payments is $92,602.99 with a present value of $78,891.27. The amount to be paid to transferor is $50,366.27. The equivalent interest rate is 19.99%. Transferor intends to use $45,000 as down payent on a condominium and the remaining amount for furniture and furnishings. Monthly mortgage payments will be less than his current monthly rent. The court finds it is in the best interests of transferor to transfer a portion of the monthly payments for such purpose. Petitioner shall submit a formal order for the court's signature. Department 53 April 25, 2005 Page 8 ______________ *** ITEM 14 05CS00251 IN RE: SANDRA FLETCHER Nature of Proceeding: Petition For Change Of Name Filed By: FLETCHER, SANDRA Granted. *** ITEM 15 05CS00279 IN RE: SASHA JONES Nature of Proceeding: Petition For Change Of Name Filed By: JAMES, SASHA Granted on condition proof of publication is filed in Department 53 before the time of the hearing. *** ITEM 16 05CS00385 COSUMNES CORPORATION VS. RANCHO MURIETA EVENTS CORP. Nature of Proceeding: PET ORDER APPOINTING REFEREE Filed By: DYER, GREGORY F. Respondent now agrees that a referee should be appointed pursuant to the Purchase and Sale Agreement. If the parties have agreed on who should be appointed, they shall inform the court prior to the hearing and the court will appoint that person. If they do not agree, they shall each submit up to three nominees and the court will appoint a referee from the nominees. CCP Section 640. This minute order is effective immediately. No formal order is required, the tentative ruling being sufficient notice. *** ITEM 17 03AM06683 ALBERT TURNER VS. JAMES ROSEMOND, ET AL Nature of Proceeding: Motion To Withdraw Atty of Rec Filed By: KAPLAN, JESSE S. Continued to 04/27/2005 Department 53 April 25, 2005 Page 9 ______________ *** ITEM 18 03CM02585 JOSE R. SANCHEZ MD VS. ALVIO MEDICAL GROUP, INC. Nature of Proceeding: Motion To Transfer To Muni Cou Filed By: CARICHOFF, ROBERT A. Appellant's motion to reclassify the case as one of unlimited jurisdiction is denied. Appellant has appealed from a decision of the Labor Commissioner. He contends he was entitled to $7,500 in severance pay. The Commissioner found he was not entitled to any sum. The amount in controversy does not exceed $25,000. Appellant contends he has suffered damages in excess of $25,000 because he has claims for defamation and he is entitled to de novo review. Labor Code Section 98. Appellant misunderstands the concept of de novo review. This means the court may consider the evidence, including new evidence, without regard to the decision of the Commissioner, whose decision is entitled to no weight. It does not mean appellant can expand his claims. If appellant has a cause of action for defamation or other tort claims he should file a separate action. The only issue on appeal is whether he is entitled to severance pay. This minute order is effective immediately. No formal order is required, the tentative ruling being sufficient notice. *** ITEM 19 04AM05685 BENEFICIAL CALIFORNIA V SANDRA TOBIAS Nature of Proceeding: MOTION FOR SUMMARY JUDGMENT Filed By: SHWACHMAN, ARTHUR Plaintiff's motion for summary judgment is granted. Plaintiff has shown by admissible relevant evidence that defendant is indebted to plaintiff and has failed to make the payments as required by the loan agreement. The court has not considered defendant's "response" filed on April 21, 2005. Oppositions must be filed and served nine court days before the hearing. In addition, there is no separate statement. The court will sign the formal order and judgment submitted with the movng papers, striking the amounts for attorney's fees and costs. These must be the subject of a memorandum of costs and a motion for attorney's fees after judgment is entered. Department 53 April 25, 2005 Page 10 ______________ ***