&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 THOMAS M. CECIL, Judge R. ROUSE, Clerk V. CARROLL, Bailiff April 26, 2005, 09:00 ITEM 1 02AS06066 MARY SPOTT VS. UNITED RENTALS, ET AL č Nature of Proceeding: Demurrer Filed By: WORKMAN, ROBIN G. The matter is continued to June 17, 2005. Trial has been continued. Issues relating to the second cause of action are presently before the Court of Appeal. *** ITEM 2 03AS00500 BRIAN DENIKE VS. MARGARET CHERRIX Nature of Proceeding: MOT TO EXPUNGE NOTICE OF PENDENCY OF ACTION Filed By: KRESTOFF, JASON A. Defendant's Motion to Expunge is Granted. The motion is not moot notwithstanding the stipulated fact that title to the real property at issue has been changed due to the sale of the real property on April 7, 2005 and the close of escrow. 405.30 C.C.P. Defendant is a party and has standing to bring this motion. Defendant need not show a present interest in the property to maintain this motion. Contrary to Plaintiff's position, this Court has not determined the validity of the lis pendens. As explained at the earlier hearing, the Court based its decision solely upon the contents of the Complaint. The ruling on the instant motion is governed by the evidence. 405.32 C.C.P. Plaintiff is correct that he need not demonstrate that he is named on the title documents. However, contrary to the Plaintiff's arguments, Plaintiff has the burden of producing evidence demonstrating the merits of his case. It is not sufficient to simply negate the Defendant's articulated or perceived defenses. Plaintiff asserts that the failure to file an answer to the amended complaint constitutes an admission. Plaintiff is in error. Defendant has filed an answer to the original complaint that addresses the quiet title cause of action. Even if that answer is unverified, the Court views Plaintiff's belated attack on the validity of the answer as a waiver of such defect for purposes of this motion. The Court declines to rule on the question of whether or not the Amended Complaint has been properly served. Defendant's objection to the late filed opposition is denied. There appears to have been no prejudice to the Defendant. The Court exercises its authority as to the question of attorney fees and costs (405.38 C.C.P.) and declines to award attorney fees or costs under the circumstances. In the light of this ruling, the restraining order issued by Judge Chang on April 13 is now terminated. jc Department 54 April 26, 2005 Page 2 ______________ *** ITEM 3 03AS02072 SUSAN SMITH, ET AL VS. AREA 4 AGENCY ON AGING, ET AL Nature of Proceeding: Summary Judgment Filed By: POTT, MICHAEL W. Defendants' motion for summary judgment, or in the alternative summary adjudication, is ruled upon as follows. Defendants' motion for summary adjudication of the first cause of action, breach of contract, is granted. It is undisputed that the contracts required plaintiff to perform an audit before final payment. Another contract term permitted defendants to "suspend or terminate" the contract in the event plaintiff failed to comply with the conditions of the agreement. The audit requirement is a material term as an audit was necessary to adjust payment for "prepaid expenses." Further, the disputed accounting entry for workers' compensation insurance made the need for an audit especially imperative before public funds could be disbursed. The fact that the agreements may have permitted defendants to perform an audit does not relieve plaintiff of its own responsibility. Defendants' motion for summary adjudication of the second and third causes of action, quantum meruit and unjust enrichment, is granted. Recovery under these legal theories is not premised on the validity of the parties' contracts. However, defendants present admissible evidence that plaintiff's failure to perform an audit, and plaintiff's general financial disarray, preclude it from determining what, if anything, it is owed for services it provided defendants. Plaintiff does not dispute defendants' evidence. Instead, it claims that defendants do not demonstrate that plaintiff did not serve meals. Even so, defendants' evidence is sufficient to shift to plaintiff the burden of demonstrating the existence of a triable issue of fact as to whether defendants owe it any payment. In other words, plaintiff must present evidence that it has not already been paid for those meals. Plaintiff fails to meet its burden. Having prevailed as to each cause of action, defendants are entitled to judgment as a matter of law. Defendants' request for judicial notice is granted. Defendants' objections to paragraphs 16, 21 and 25 of Robert Hunt's declaration are sustained. Defendants' remaining objections are overruled. Defendants' counsel shall prepare an order pursuant to CCP section 437c(g) and CRC rule 391, and a judgment for the court's signature. f Department 54 April 26, 2005 Page 3 ______________ *** ITEM 4 03AS02489 DONALD MOORE, ET AL VS. GARY ERVIN Nature of Proceeding: Summary Judgment Filed By: SAMUELS, DEBRA L. Cross-defendants Donald Moore and Genevie Moore's motion for summary judgment on the cross-complaint is granted. Cross-defendants' material facts, found on pages 1 through 5 of their memorandum, with appropriate citations to their separate statement and excluding exhibits B, H, I, and J, are undisputed. These facts are sufficient to shift to cross-complainant the burden of demonstrating the existence of a triable issue of material fact. Cross-complainant did not file either a separate statement or a memorandum of points and authorities in opposition to cross-defendants' motion. Cross-complainant failed to meet his burden. Cross-defendants, therefore, are entitled to judgment as a matter of law. Cross-defendants' request for judicial notice is granted. However, the court did not consider cross-complainant's conviction of an infraction or his appeal of that conviction (exhibits I and J). Cross-complainant's objections numbers 2 and 8 are sustained. Cross-complainant's remaining objections are overruled. Cross-complainant's request for judicial notice, number 4, of the complaint filed in US District Court on April 11, 2005, is granted. Cross-complainant's other requests for judicial notice are denied. Cross-complainant's request to present oral evidence at hearing is denied. Cross-complainant failed to demonstrated good cause for such testimony. CRC rule 323(a). Cross-defendants' counsel shall prepare an order pursuant to CCP section 437c(g) and CRC rule 391, and a judgment for the court's signature. f *** Department 54 April 26, 2005 Page 4 ______________ ITEM 5 03AS02489 DONALD MOORE, ET AL. VS. GARY ERVIN, Nature of Proceeding: MT FOR SUPR OF DEPS/PROT ORDER Filed By: ERVIN, GARY Cross-complainant's motion to suppress and for protective order is denied. Cross-defendants properly noticed three depositions, scheduled seriatim on October 21, 2004. Cross-complainant made no objection and attended the first deposition. He left before the second deposition was taken even though he was informed that the second deponent, although tardy, was on his way and the third deposition was still scheduled to be held after the second. Cross-complainant attended the third deposition. Cross-defendants should not bear the cost of cross-complainant's decision not to wait for the second deposition. This minute order is effective immediately. No formal order pursuant to CRC rule 391 or other notice is required. f *** ITEM 6 04AS00182 DAVID E. WELLHOUSE, ET AL VS. ARNOLD WULZ Nature of Proceeding: Motion To Withdraw Atty of Rec Filed By: WEINBERGER, JOSEPH B. Dropped. *** ITEM 7 04AS00188 WENSHINLES, INC., ET AL VS. ADVANCE EDUCATION, INC. Nature of Proceeding: Motion To Compel Filed By: BONOTTO, PHILLIP R. Dropped. Department 54 April 26, 2005 Page 5 ______________ *** ITEM 8 04AS00402 ESTELLE HUNT VS. WASHINGTON MUTUAL BANK, ET AL Nature of Proceeding: Demurrer Filed By: O'CONNELL, WILLIAM A. Defendants Fidelity Nation Title Insurance Company and Chicago Title Insurance Company's demurrer to the first amended complaint, which is unopposed, is sustained without leave to amend for failure to state facts sufficient to constitute a cause of action. Defendants insured title to property owned by plaintiff Estelle Hunt. None of the facts plaintiffs allege in the complaint pertain to the demurring defendants. The court construes plaintiffs' non-opposition as a concessions on the merits. Leave to amend, therefore, is not granted. Defendants shall prepare an order pursuant to CRC rule 391 and a judgment of dismissal for the court's signature. f *** ITEM 9 04AS00402 ESTELLE HUNT VS. WASHINGTON MUTUAL BANK, ET AL Nature of Proceeding: DEMURRER Filed By: ENSBERG, STEPHEN E. Defendant Homecomings Financial Network, Inc.'s demurrer to the first amended complaint, which is unopposed, is sustained without leave to amend for failure to state facts sufficient to constitute a cause of action. Defendant loaned plaintiff Estelle Hunt funds to refinance her mortgage. None of the facts plaintiffs allege in the complaint specifically charge this defendant with wrongful conduct. The court construes plaintiffs' non-opposition as a concessions on the merits. Leave to amend, therefore, is not granted. Defendant shall prepare an order pursuant to CRC rule 391 and a judgment of dismissal for the court's signature. f Department 54 April 26, 2005 Page 6 ______________ *** ITEM 10 04AS01542 RODNEY TINER VS. CLIFFORD C. CATON, JR., ET AL Nature of Proceeding: Default Hearing Filed By: BIEGLER, ROBERT P. Appearance required. Doe defendants must be dismissed prior to entry of judgment. *** ITEM 11 04AS04612 KEN GEHRING, ET AL VS. STEVEN SHUMWAY, ET AL Nature of Proceeding: MOTION TO EXPUNGE LIS PENDENS Filed By: KNIGHT, STUART W. Defendant Oak Avenue Trust's motion to expunge lis pendens, which is unopposed, is granted. The lis pendens is ordered expunged. The court notes there is neither a lis pendens nor a proof of service of one in the court file. The court awards defendant attorney fees in the amount of $700. Counsel may appear telephonically if necessary. f *** ITEM 12 05AS00126 PAULA ROBINSON VS. STATE OF CALIFORNIA Nature of Proceeding: Demurrer Filed By: BASS, DAVID I. Defendant State of California's demurrer is ruled upon as follows. As a preliminary matter, the demurrer on the ground that plaintiff failed to name as defendant her employing agency is sustained with leave to amend for failure to state facts sufficient to constitute a cause of action. Plaintiff alleges that the acts about which she complains occurred while employed as a taxation technician for the State Board of Equalization. It is against that agency, then, rather than the state as a single entity, that defendant alleges wrongdoing. Defendant's demurrer to the first and second causes of action, harassment and discrimination (Government Code section 12920 and 42 USC 20003-2) is sustained with leave to amend for failure to state facts sufficient to constitute a cause of action. Plaintiff's allegations of discrimination are inadequate, particularly with respect to an adverse action and discriminatory motive. Plaintiff's conclusory argument that she "sufficiently pled these elements," unaccompanied by any analysis, was not helpful to the court. Similarly, plaintiff's harassment allegation are inadequate. Other than in a conclusory manner, plaintiff relates the particulars of only a few incidents over a seven year period. Further, she concedes she did not report to her employer any alleged misconduct prior to 2004. Even when she did, she does not know whether her employer took any action. Plaintiff permanently left work one day after the May 18, 2004 incident. Finally, plaintiff improperly pleads in a single cause of action two separate wrongs. Defendant's demurrer to the third cause of action, wrongful constructive termination in violation of public policy, is sustained without leave to amend for failure to state facts sufficient to constitute a cause of action. This cause of action is a common law tort, to which public entities are immune. Defendant's demurrer to the fourth cause of action, intentional infliction of emotional distress, is sustained without leave to amend for failure to state facts sufficient to constitute a cause of action. Plaintiff does not oppose defendant's demurrer, a concessions on the merits. A demurrer does not lie as to a claim for punitive damages. The court notes, however, that punitive damages may not be sought against a public entity. Where leave to amend has been granted, plaintiff may file and serve an amended complaint no later than May 6, 2005. Defendant may file and serve a response no later than May 16, 2005. This minute order is effective immediately. No formal order pursuant to CRC rule 391 or other notice is required. f Department 54 April 26, 2005 Page 7 ______________ *** ITEM 13 05AS00844 KARIBU LLC VS. TYMANI INC., ET AL. Nature of Proceeding: Motion To Strike Filed By: NGUYEN, LU T. Dropped. *** ITEM 14 05CS00296 IN RE: CHARLES DANIEL MCEVOY Nature of Proceeding: Petition For Change Of Name Filed By: MCEVOY, CHARLES DANIEL The petition is granted. *** ITEM 15 05CS00302 IN RE: KEVIN ELLIOTT BELCHER Nature of Proceeding: Petition For Change Of Name Filed By: BELCHER, KEVIN ELLIOTT The petition is granted. *** ITEM 16 05CS00304 IN RE: JOSEPH GORDON ALLSUP Nature of Proceeding: Petition For Change Of Name Filed By: ROSE, R. MARK The petition is granted. *** Department 54 April 26, 2005 Page 8 ______________ ITEM 17 04AM00082 CAPITAL CROSSROADS GAY RODEO ASSN VS. H. LES RISINGER Nature of Proceeding: Motion To Reclassify Limited C Filed By: FINELLI, STEPHANIE J. Defendant and cross-complainant's motion to reclassify action from limited to unlimited, which is unopposed, is granted, provided that defendant and cross-complainant pays the reclassification fee required by CCP section 403.060. This minute order is effective immediately. No formal order pursuant to CRC rule 391 or other notice is required. f *** ITEM 18 04AM01250 TRUCK TIME AUTO VS. MARK STEVEN WESTBROOK Nature of Proceeding: Motion To Compel Filed By: KINSEY, SHARON L. Defendant/cross-complainant motion to compel responses to discovery, which is unopposed, is granted in part and denied in part. Defendant/cross-complainant's motion to compel responses to special interrogatories is granted. Plaintiff/cross-defendant Auto Linksac, Inc. shall serve verified responses, without objection, to special interrogatories served on November 18, 2004, no later than May 6, 2005. Defendant/cross-complainant's motion to compel further responses to request for production of documents is denied. According to defendant/cross-complainant's CRC rule 335 statement, plaintiff/cross-defendant responded that it would comply with requests 1-4, 6, 8, 9, 12, and 22-27. With respect to requests 4, 22, 23, 27, the court declines to construe defendant/cross-complainant's motion as one to compel compliance under CCP section 2031(n). Defendant/cross-complainant does not mention that subdivision and the statement that "it appears that no documents were produced" in response to those requests is insufficient. Again according to defendant/cross-complainant's CRC rule 335 statement, plaintiff/cross-defendant responded that it had made a diligent search, but could not find any documents responsive to requests 5, 7, 10, 11, and 13-21. No further response is necessary. Defendant/cross-complainant's request for a monetary sanction is denied as the motion is unopposed. Defendant/cross-complainant's exhibits do not comply with CRC rule 311(e). This minute order is effective immediately. No formal order pursuant to CRC rule 391 or other notice is required. f Department 54 April 26, 2005 Page 9 ______________ *** ITEM 19 04AM09246 NO CAL COLL SERV. INC VS. GUJJAR BROTHERS, INC., ET AL Nature of Proceeding: CLAIM OF EXEMPTION Filed By: CRIBB, STEVEN D. The matter is continued to May 10, 2005. *** ITEM 20 04AM10084 PACIFIC BELL DIRECTORY VS. EDWARD COOLEY, ET AL Nature of Proceeding: MOTION FOR ASSIGNMENT OF RIGHTS Filed By: COOK, DAVID J. Plaintiff's motion for an order assigning rights (CCP section 708.510), a restraining order (CCP section 708.520), a turn over order (CCP section 699.040) and an order requiring judgment debtor's appearance (CCP section 708.110), which is unopposed, is granted. The order under CCP section 708.100 shall be for a single examination. Plaintiff's counsel shall prepare orders for the court's signature. f *** ITEM 21 04ED01712 STATE OF CALIFORNIA, ET AL VS. KEN H. LOUIE, II Nature of Proceeding: CLAIM OF EXEMPTION Filed By: KURTTILA, J. The claim of exemption is denied. The claim is based on the fact that the judgment debtor's earnings are needed for his support and the support of his family. An exemption on that ground is not available since the underlying judgment is for a debt incurred for the common necessaries of life. Unemployment insurance is presumed to be used for the common necessaries of life. The judgment creditor, however, is willing to accept a lesser amount than it is entitled to garnish. The Sheriff is therefore directed to garnish $150 per month from the judgment debtor's earnings and to return to the judgment debtor any amount it is holding greater than $150. Department 54 April 26, 2005 Page 10 ______________ ***