&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 AMOUNTlS 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 27, 2005, 02:00 ITEM 1 03AS05207 AMERICAN RIVER BAN VS. SELECT INCOME PROPERTIES 6, ET AL Nature of Proceeding: MOTION TO TAKE DEPOSITION Filed By: HALL, MARCUS T. Defendant/cross-complainant's motion to take the depositions of Douglas Tow and plaintiff's Person Most Knowlegeable within 30 days of trial is denied. The trial date is May 16, 2005. Defendant noticed the depositions for April 21, 2005. Its reason for doing so was that it hoped to avoid the necessity and expense of the depositions should the matter settle at the settlement conference on April 18, 2005. The purpose of discovery is to facilitate settlement. Therefore, a party should have completed discovery before the settlement conference. Defendant complains that plaintiff waited until April 11, 2005 to object to the deposition notices. Plaintiff was required to object three days before the noticed date and it objected 10 days before. Plaintiff argues that it will have to produce at least four persons as PMK because of the numerous areas on which the witness would be deposed. Defendant has not been diligent and its reason for not acting sooner is not convincing. This minute order is effective immediately. No formal order is required, the tentative ruling being sufficient notice. Department 53 April 27, 2005 Page 2 ______________ *** ITEM 2 04AS01135 BRE/HV PROPERTIES, LLC VS. WERMERS BUILDERS, INC., ET AL Nature of Proceeding: MOT GOOD FAITH SETTLEMENT/JOINDER Filed By: HAYDON, BRIAN C. The motion of cross-defendant Teichert for a finding that its settlement with Wermer and cross-defendant A&B Asphalt is in good faith is unopposed and granted. Plaintiff BRE was sued in Federal court by a disabled individual who alleged various violations of the ADA including parking spaces and striping in BRE's parking lot. BRE then brought this action against Teichert who graded and paved the lot and Wermers who striped the lot. The proposed settlement of $7,500 actually exceeds the original cost of striping and more than reflects the proportionate liablity of settling parties. The court finds the settlement is in good faith and meets the Tech-Bilt standards. The court will sign the order submitted with the moving papers. *** ITEM 3 04AS03139 JACQUELYN MAUERMAN VS. THE PACESETTER CORPORATION Nature of Proceeding: Motion To Compel Filed By: BENZINGER, ANDREW E. Dropped. *** ITEM 4 04AS03395 24 HOURS FITNESS USA, INC. VS. LEXINGTON INS CO., ET AL Nature of Proceeding: MOTION FOR PROTECTIVE ORDER Filed By: SANKARY, DANA DUMAS Continued to 05/02/2005 Department 53 April 27, 2005 Page 3 ______________ *** ITEM 5 04CS01669 PEOPLE STATE OF CALIF V $17,100.00, ET AL. (GUTIERREZ) Nature of Proceeding: Motion To Compel Filed By: LEONARD, STEPHANIE Dropped. *** Department 53 April 27, 2005 Page 4 ______________ ITEM 6 04CS01675 PEOPLE STATE OF CALIF V $1,247.00 (SOUTER) Nature of Proceeding: Motion To Compel Filed By: LEONARD, STEPHANIE Petitioner's motion to compel a response to request for production is unopposed and granted. Compliance without objections shall be by May 9, 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 statute governing this discovery, CCP 2031(l), authorizes 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. Petitioner shall mail a copy of the minute order to real party. *** ITEM 7 04CS01747 THE PEOPLE OF THE ST OF CA VS. $545.00 (KENT) Nature of Proceeding: Motion To Compel Filed By: LEONARD, STEPHANIE Petitioner's motion to compel a response to request for production is unopposed and granted. Compliance without objections shall be by May 9, 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 statute governing this discovery, CCP 2031(l), authorizes 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. Petitioner shall mail a copy of the order to real party. Department 53 April 27, 2005 Page 5 ______________ *** ITEM 8 05AS00201 MEHDI B. RAHIMI VS. NORDSTROM, ET AL Nature of Proceeding: MOTION MATTERS DEEMED ADMITTED Filed By: GILL, THOMAS R. Defendant's motion to compel a response to request for production and for an order that certain matters be deemed admitted is granted. Plaintiff shall respond to the request for production without objections by May 9, 2005. The matters will be deemed admitted unless plaintiff provides a response that is in substantial compliance with CCP 2033(f)(1) before the time of the hearing, If defendant receives responses before the hearing, it shall inform the court. Plaintiff has not filed a substantive opposition but he has sent a letter to the court. There is no proof of service indicating that he also sent it to defendant. It is apparent that plaintiff does not understand the discovery process. He mistakenly believes that because he gave a letter and a receipt to an employee of Nordstrom, he does not need to respond to defendant's request for production. Mandatory sanctions on the request for admission are ordered in the amount of $201.30, payable no later than May 27, 2005. Sanctions are otherwise 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 statute governing this discovery, CCP 2031(l), authorizes 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. Plaintiff is admonished that ex parte communications with the court are not permissible and any documents he files with the court must be served on defendant. This minute order is effective immediately. No formal order is required, the tentative ruling being sufficient notice. *** Department 53 April 27, 2005 Page 6 ______________ ITEM 9 05CS00089 IN RE: AMALIA LUZ MERAZ-LABRADO Nature of Proceeding: Petition For Change Of Name Filed By: LABRADO, MARCO Granted. *** ITEM 10 05CS00219 ADRIANNA T BLEA, ET AL. VS. CITY OF SACRAMENTO, ET AL. Nature of Proceeding: PET FOR RELIEF FROM CODE 945.4 Filed By: DUDENSING, EDWARD P. The accident occurred on January 13, 2004 when the mother of the two minor petitioners and daughter of petitioner Pope was killed and one of the minors was injured. On November 30, 2004 claims were filed with the City along with leave to present a late claim. The City denied the claims as untimely. As to the two minor petitioner's the City does not oppose the petition as the six months time limitation is tolled and their claims were filed within one year of the accident. The petition of Pope is denied. Her declaration does not support a finding of excusable neglect. That she was close to her daughter, consumed with grief, and involved in caring for the injured grandchild, is completely understandable. However, while the court is sympathic to her plight, such reasons are insufficient as a matter of law to support excusable neglect. See Drummond v. County of Fresno (1987) 193 Cal. App.3d 1406, 1411. Similarly, inorance of the claim filing requirement and time limits do not provide an excuse. El Dorado Irrig. Dist. v. Superior Court (1979) 98 Cal.App.3d 57. Petitioner contends her failure to file a claim is much like that in County of Santa Clara v Superior Court (1971) 4l Cal.3d 545. However, that case was brought when the claims period was 100 days and the claim was only 30 days late. This minute order is effective immediately. No formal order is required, the tentative ruling being sufficient notice. *** Department 53 April 27, 2005 Page 7 ______________ ITEM 11 05CS00301 IN RE: KIEU-CHINH THI LUONG Nature of Proceeding: Petition For Change Of Name Filed By: LUONG, KIEU Granted. *** ITEM 12 05CS00313 IN RE: ALAN HILL, ET AL Nature of Proceeding: Petition For Change Of Name Filed By: HILL, ALAN Granted on condition proof of publication is filed in Department 53 before the time of the hearing. *** ITEM 13 03AM06683 ALBERT TURNER VS. JAMES ROSEMOND, ET AL Nature of Proceeding: MOT TO BE RELIEVED AS COUNSEL Filed By: KAPLAN, JESSE S. The motion of counsel for plaintiff to withdraw as attorney of record is granted. Counsel will file proof of personal service on the client. Counsel shall submit a formal order on Judicial Council form. The order will be effective when proof of service of the signed order on client is filed with the court. ***