&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 26, 2005, 02:00 ITEM 1 02AS04871 TINA ANDRADE VS. DONALD W. HAUSE MD. Nature of Proceeding: MOTION TO QUASH Filed By: HUBBARD, JULIAN J. Continued to 05/02/2005 *** ITEM 2 02AS06177 ESTATE OF LARRY J. SKATES, ET AL VS. GREGORY CANZANESE ET AL Nature of Proceeding: Motion To Compel Filed By: EMANUELS, ERIC S. Dropped. Dropped from calendar as moot as moving party Rogue Valley Medical Center prevailed on its summary judgment motion on April 18, 2005. Department 53 April 26, 2005 Page 2 ______________ *** ITEM 3 02AS06757 GLORIA ORTIZ-PASCO, ET AL VS. COLLEGE OAK TOWING, ET AL Nature of Proceeding: MOTION TO QUASH Filed By: BROTHERS, KIERAN J. Plaintiff Mary Acosta' Motion to Quash Records Subpoena is granted. Moving party's request for imposition of sanctions is denied, the cross-request for sanctions is denied. Judicial Arbitration in this action took place on May 11, 2004. The arbitrator's award was issued May 24, 2004, which award was rejected by College Oak Towing. After the arbitration, defendant College Oak Towing has served a business records subpoena on a non-party, giving notice to consumer. Code of Civil Procedure section 1141.24, precludes discovery (other than expert discovery) after an arbitration award, except by stipulation of the parties or by leave of court upon a showing of good cause. No stipulation or request for leave to reopen discovery has been made. Moving party requests that this Court quash the subpoena duces tecum as violative of the statutory construct prohibiting discovery after 15 days before the arbitration date. Opposing party contends that a subpoena served under Code of Civil Procedure section 1985, is not "discovery". The Court finds that Code of Civil Procedure section 2020, describes the methods of discovery from a non-party, as an oral deposition under Section 2025, a written deposition under Section 2028, or a deposition for production of business records and things, under Section 2020. Code of Civil Procedure section 2020(a)(3) further provides that: "Except as modified in this section, the provisions of Chapter 2 (commencing with Section 1985), and of Article 4 (commencing with Section 1560) of Chapter 2 of Division 11 of the Evidence Code, apply to a deposition subpoena." Although Code of Civil Procedure section 1985, et seq. is outside the 1986 Discovery Act, the court finds that the procedures set forth their for notice to consumers simply modifies the Discovery Act, but remains subject to it. The motion to quash is therefore granted, as the subpoena for production of documents from a third party is "discovery" under California law. This Court is not bound by a prior inconsistent order in another unrelated action, in which both the facts and the arguments of counsel may have been different. The Court is now persuaded that the ruling here is the correct result. Given plaintiff's ostensible reasonable reliance on the prior court ruling it would be unjust to impose sanctions. This minute order is effective immediately. No formal order nor further notice is required, the tentative ruling providing sufficient notice. 6757203 Department 53 April 26, 2005 Page 3 ______________ *** ITEM 4 02AS07841 MARCUS ARMSTRONG VS. BIANCHI PLUMBING Nature of Proceeding: Motion To Dismiss Filed By: MILES, MARK Motion for Discretionay dismissal for failure to prosecute is unopposed but is denied without prejudice. Since the notice was served by mail, the 45 day notice period of CRC 373(a) is extended five days to 50 days. CCP 1013(a). The continuance of the motion from April 22 to April 26 does not cure the initial notice defect. The late filing of the motion due to the lack of accurate mailing address in the Local Rules is excused, but the notice defect remains. The minute order is effective immediately. No formal order is required, however defendant shall mail a copy of the minute order to plaintiff. *** ITEM 5 02CS01081 UMLIC VP LLC VS. DOUGLAS G. STEWART Nature of Proceeding: CLAIM OF EXEMPTION Filed By: BEALL, KELLY ANDREW Continued to 05/10/2005 Continued on the court's own motion to May 10, 2005 because there is no claim of exemption in the court file. Judgment creditor shall file a copy of the claim of exemption and financial statement in Department 53 on or before May 6, 2005. The clerk shall send a copy of the minute order to the parties. *** ITEM 6 03AS06359 DEBRA DUNCAN VS. SACRAMENTO EAR, ET AL Nature of Proceeding: MOT ALLOW TARDY EXPERT WITNESS DISCLOSURE Filed By: MCGLAMERY, JAMES E. Plaintiff's Motion to Allow Tardy Expert Witness Disclosure is granted. Sanctions are neither requested nor imposed. Moving party has 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. Moving party failed to timely serve his designation of expert witnesses. (It was served less than a week late.) The trial date of May 16, 2005 has been vacated and trial has been re-calendared for July 11, 2005. Opposing party relies solely upon the argument that because the trial setting clerk refused to grant an initial trial date sufficiently far away to permit the filing of a motion for summary judgment under the 75 day notice period, and the Presiding Judge subsequently denied defendant leave to file a motion for summary judgment after the trial date had been set, it will be prejudiced. Departments 53, 54, and 47 have developed a policy that where a party brings to the attention of the clerk at trial setting that: (1) a summary judgment/adjudication motion has been filed and calendared prior to the trial setting conference and (2) the hearing date for the motion is such that no trial date is available at the setting conference which would be more than 30 days beyond the hearing date, the clerk can continue the case to the next available trial setting conference which would yield a trial date more than 30 days beyond the hearing date for the motion. However, if counsel has not actually filed a summary judgment/adjudication motion and calendared it before the trial setting conference, the trial date must be set within the 60 to 90 day window applicable to the current trial setting conference. This Court may not consider a motion for reconsideration that may properly be made only to the Presiding Judge who originally issued the order. This motion to allow expert witnesses is made a sufficient time in advance of the time limit for the completion of discovery to permit the deposition of any expert to whom the motion relates to be taken within that time limit, and is accompanied by a declaration stating facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion. The court does not find that the opposing party has relied on the absence of a list of expert witnesses, nor that opposing party will be prejudiced in maintaining that party's defense on the merits. The court further finds that the moving party (1) failed to submit that information as the result of mistake, inadvertence, surprise, or excusable neglect, (2) sought that leave promptly after learning of the mistake, inadvertence, surprise, or excusable neglect, and (3) has promptly thereafter served a copy of the proposed expert witness information on all other parties who have appeared in the action. This order shall be conditioned on the moving party making that expert available immediately for a deposition. Should defendant desire to designate any expert witnesses, it may do so not later than Monday, May 16, 2005. This minute order is effective immediately. No formal order nor further notice is required, the tentative ruling providing sufficient notice. 6359203 Department 53 April 26, 2005 Page 4 ______________ *** ITEM 7 04AS00789 TABRE HESS, ET AL VS. BRADLEY J. SHEBESTA Nature of Proceeding: Motion For Judgment On Pleadin Filed By: LOEWEN, MICHAEL R. Plaintiff's Motion for Judgment on the Pleadings is granted with leave to amend. Plaintiff's Request for Judicial Notice is granted. Plaintiff moves for judgment on the pleadings, on the grounds that the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint. Code of Civil Procedure section 438(c)(1)(A). A motion for judgment on the pleadings is treated as a general demurrer. Code of Civil Procedure section 430.20. The affirmative defenses are proffered in the form of terse legal conclusions, rather than as facts averred as carefully and with as much detail as the facts which constitute the cause of action and are alleged in the complaint. FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 384. As insufficient facts have been alleged, the motion is granted, with leave to amend. Defendant may file and serve an amended answer to the complaint on or before Friday, May 6, 2005. This minute order is effective immediately. No formal order nor further notice is required, the tentative ruling providing sufficient notice. 0789203 *** ITEM 8 04AS02975 FIRST AMER TITLE INS CO, ETAL VS. DONALD M. WANLAND,JR.,ETAL Nature of Proceeding: Demurrer Filed By: DOYLE, CHRISTOPHER H. Cross-defendants' Request for Judicial Notice is granted, although the matters judicially noticed (Complaint and tentative ruling on the demurrer to the complaint) are not relevant to the issues involved in the demurrer to the cross-complaint. Cross-defendant title companies' Demurrer to the Cross-Complaint of 705 University Partners is overruled. 1st cause of action Breach of Contract: Overruled. The Complaint adequately alleges breach of the contract to provide title insurance based on failure indemnify cross-complainant for the recorded tax liens. The court cannot go beyond the face of the pleadings and draw inferences, and therefore cannot determine at the pleading stage that the partnership had imputed knowledge of the liens (which could fall under the exclusion in the policy for "liens created, suffered, assumed or agreed by the insured) or that cross-complainants fraudulently induced the cross-defendants to issue title insurance. 2nd cause of action Breach of the Covenant of Good Faith and Fair Dealing: Overruled. 3rd cause of action Negligence: Overruled. A cause of action is stated for negligent performance of the contract which obligated the cross-defendants to discover the tax liens. 4th cause of action Violation of B&P 17200: Overruled. A cause of action is stated based on the alleged business practice of issuing title insurance Answer to be filed and served on or before May 6, 2005. The minute order is effective immediately. No formal order or further notice is required, the tentative ruling providing sufficient notice. Department 53 April 26, 2005 Page 5 ______________ *** ITEM 9 04CS00927 THE PEOPLE OF THE ST OF CA VS. $5401.00(JAMBERLYNN BRUNSON) Nature of Proceeding: Motion To Strike Filed By: LEONARD, STEPHANIE Petitioner's Motion for Terminating sanctions is unopposed and is granted. The claim opposing forfeiture is stricken. Real party in interest willfully disobeyed her discovery obligations and the court order requiring responses to be served on or before March 3, 2005. Petitioner cannot prosecute its forfeiture action without this discovery. Petitioner shall schedule a prove-up hearing on the petition for forfeiture. Petitioner to prepare a formal order pursuant to CRC 391. *** ITEM 10 04CS01351 THE PEOPLE OF THE ST OF CA VS. $867.00 ( BILLY TOWRY) Nature of Proceeding: Motion To Compel Filed By: LEONARD, STEPHANIE Petitioner's Motion to Compel Responses to Form and Special Interrogatories is granted. Real party in interest is ordered to serve discovery responses on petitioner, under oath, on or before May 20, 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 minute order is effective immediately. No formal order is required, however petitioner shall send a copy of the minute order to real party in interest forthwith. Department 53 April 26, 2005 Page 6 ______________ *** ITEM 11 04CS01585 PEOPLE OF THE STATE OF CA VS. $1731.00, ET AL. (WASHINGTON) Nature of Proceeding: Motion To Strike Filed By: LEONARD, STEPHANIE Petitioner's Motion for Terminating sanctions is unopposed and is granted. The claim opposing forfeiture is stricken. Real party in interest willfully disobeyed his discovery obligations and the court order requiring responses to be served on or before March 3, 2005. Petitioner is unable to prosecute its forfeiture action without this discovery. Petitioner shall schedule a prove-up hearing on the petition for forfeiture. Petitioner to prepare a formal order pursuant to CRC 391. *** ITEM 12 05CS00025 PEOPLE OF THE STATE OF CA VS. $4,080.00 (ALFORQUE) Nature of Proceeding: Motion To Compel Filed By: LEONARD, STEPHANIE Petitioner's Motion to Compel Responses to Requests for Production is granted. Real party in interest is ordered to serve on petitioner discovery responses, under oath, on or before May 20, 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 minute order is effective immediately. No formal order is required, however petitioner shall send a copy of the minute order to real party in interest forthwith. Department 53 April 26, 2005 Page 7 ______________ *** ITEM 13 05CS00113 IN RE: RICHARD LEE SCHMIDT JR. Nature of Proceeding: Petition For Change Of Name Filed By: SCHMIDT, RICHARD Petition for Name Change is granted. *** ITEM 14 05CS00299 IN RE: OSCAR J. VALDEZ-RIVERA Nature of Proceeding: Petition For Change Of Name Filed By: VALDEZ-RIVERA, OSCAR Petition for Name Change is granted. *** ITEM 15 05CS00303 IN RE: LOREEN A. RAETZ Nature of Proceeding: Petition For Change Of Name Filed By: RAETZ, LOREEN A. Petition for Name Change is granted on condition proof of publication is filed in Department 53 before the time of the hearing. *** ITEM 16 05CS00305 IN RE: DMITRY POONKA, ET AL Nature of Proceeding: Petition For Change Of Name Filed By: POONKA, LYUBOV The petition for name change is granted. *** Department 53 April 26, 2005 Page 8 ______________ ITEM 17 02AM08039 SERGIO M. RODRIGUEZ VS. MAURICIO IBARRA, ET AL Nature of Proceeding: MOTION TO REOPEN DISCOVERY Filed By: BORREGO, JOSE A. Motion to Reopen Discovery after the November 2003 judicial arbitration is denied. No good cause is shown. Good cause for reopening discovery is not shown by the fact that former counsel had not conducted any discovery before the arbitration, and new counsel is now on the case, regardless of whether the opposing party can show prejudice. Regan v. Lanet (1987) 197 Ca.3d. 353, 360-361. Rules of Court, rule 1612 states that "all discovery must be completed not later than 15 days prior to the date set for the arbitration hearing unless the court, upon good cause, makes an order granting an extension of the time within which discovery must be completed." Factors used to determine "good cause" include, but are not limited to: the necessity and reasons for the discovery; the diligence of the party seeking discovery; whether delay in the trial will result. Code of Civil Procedure  2024(e). The status of discovery post-arbitration, which Plaintiff's current attorney should have been aware of at the time he substituted in, can not now be used to support "good cause" to reopen discovery. In addition, present counsel has failed to act with diligence. No explanation is given as to why plaintiff's current attorney who substituted in in June of 2004 waited until now to make this motion. Moreover, the discovery requested exceeds allowable discovery in a limited jurisdiction case. CCP 94. Plaintiff shall pay sanctions to defendant in the amount of $180. CCP 2024(e). The minute order is effective immediately. No formal order or further notice is required, the tentative ruling providing sufficient notice. *** ITEM 18 03AM03381 LINDA WUNN VS. ELISA GABRIEL Nature of Proceeding: MOTION TO COMPEL (PRODUCTION) Filed By: NALBANDYAN, ARMINE Defendant's Motion to Compel Responses to Requests for Production is granted. Compliance to be without objections on or before May 6, 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 2031(l)) 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. Department 53 April 26, 2005 Page 9 ______________ *** ITEM 19 03AM03381 LINDA WUNN VS. ELISA GABRIEL Nature of Proceeding: MOTION TO COMPEL (INTEROG) Filed By: NALBANDYAN, ARMINE Defendant's Motion to Compel Responses to Form Interrogatories is granted. Compliance to be without objections on or before May 6, 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 2030(k)) 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 20 04AM07527 CARLOS MORENO LOPEZ VS. GEORGE HILLS COMPANY, INC. Nature of Proceeding: Demurrer Filed By: MELTON, DAVID A. Demurrer by George Hills Company, Inc. to the Complaint is unopposed and is sustained without leave to amend for failure to state a cause of action. No cause of action is stated against the claims administrator who denied the government tort claim on behalf of the County of Sacramento. The defects are not curable. The clerk shall send a copy of the minute order to plaintiff. Defendant shall prepare a formal order of dismissal pursuant to CRC 391. *** Department 53 April 26, 2005 Page 10 ______________ ITEM 21 04AM10091 PACIFIC BELL DIRECTORY VS. BRANDY DOERR, ET AL Nature of Proceeding: MOTION FOR ASSIGNMENT OF RIGHTS Filed By: COOK, DAVID J. Judgment creditor's motion for assignment of rights to accounts receivable etc is unopposed and is denied insofar as judgment creditor seeks an order for "periodic appearances" under CCP 708.110, but is otherwise granted. Judgment creditor to submit a formal order pursuant to CRC 391. *** ITEM 22 04ED49439 STATE OF CALIFORNIA, ET AL VS. SANDY E. BERTINO Nature of Proceeding: CLAIM OF EXEMPTION Filed By: KURTTILA, J. Claim of exemption is denied to the extent judgment creditor is entitled to $144 per pay period, up to $288 per month. Any amounts retained in excess thereof are to be returned to the judgment debtor. There is no exemption for the necessities of life if the underlying judgment is for the necessities of life. CCP 706.051(c)(1). However, judgment creditor has agreed to accept less than the maximum amount garnishable and will take $288 per month. *** ITEM 23 05CM00011 MBNA AMERICA BANK, N.A. VS. LEONORE E. SALAZAR Nature of Proceeding: Petition To Confirm Arb Award Filed By: PATENAUDE, RAYMOND Petition to Confirm Arbitration Award is unopposed but is denied without prejudice. The petition was served by mail and the court did not locate any provision in the arbitration agreement that allowed service of the petition by mail. CCP 1290.4 requires service of the petition in the manner of a summons and complaint unless the arbitration agreement provides otherwise. The minute order is effective immediately. Department 53 April 26, 2005 Page 11 ______________ ***