&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 AMOlUNTS 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 28, 2005, 02:00 ITEM 1 01AS00842 BRYON N. SATTLER, ET AL VS. POUPARIAN INVESTMENT CORP, ET AL Nature of Proceeding: Motion To File Amended Complai Filed By: SKIPPER, MARIANNE F. Defendant Allen P. Shepard dba Creative Window Concepts' Motion to File 3rd Amended Cross-complaint is unopposed and is granted. Defendant shall file and serve the proposed 3rd amended cross-complaint 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. *** ITEM 2 02AS01908 JERRY HILL ET AL VS, ACANDS, INCORPORATED Nature of Proceeding: Motion To Quash Service Summon Filed By: BALOGH, KRISTINE E. Dropped. Department 53 April 28, 2005 Page 2 ______________ *** ITEM 3 02AS02237 WILLIAM F. MILLER, ET AL VS. SUSAN C. MAURO, ET AL Nature of Proceeding: MOTION TO AUGMENT Filed By: HANS, MONICA S. Defendant's Motion to Augment Expert Witness List to add an accident reconstructionist (Kenneth Heichman) and biomechanical engineer (Sean Shimada) and 10 nonretained experts is denied. No exceptional circumstances under CCP 2034(k) have been shown. Defendant has not explained why the proposed new experts were not named in connection with the initial expert designation and initial supplemental designation. No new facts or circumstances have arisen since the initial experts were designated. The fact that defendant's prior counsel chose not to name these experts in July of 2004 is not good cause to allow the belated naming of experts. Moreover, the defendant knew as of March 3 that plaintiff was objecting to the designation as untimely. Defendant has not explained why they waited until a month before the current trial date of May 17 to seek relief. The demand to exchange expert witness information served on February 23, 2005 and objected to by plaintiff on March 3 was untimely. The initial trial date of September 14, 2004 was continued to January 25, 2005 by stipulation of counsel due to nonavailability of plaintiff's expert. The January 25 trial date was vacated pursuant to defendant's ex parte motion to continue the trial date to allow new trial counsel to become familiar with the case. No mention of the need to reopen discovery was made in connecti 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., xH¾efendant'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 madeintiff's medical condition is granted insofar as defendant may subpoena plaintiff's medical records from the discovery cut-off to the present but is otherwise denied (no additional written discovery will be permitted). Counsel for defendant was diligent in seeking discovery before the arbitration, and due to the serious nature of plaintiff's injuries and stated need for future medical treatment, there is good cause for the limited discovery related to obtaining plaintiff's current medical records. Plaintiff is mistaken in contending that defendant seeks an additional IME exam. All that is sought by this motion are medical records and additional written discovery. Sanctions are denied. The minute order is effective immediately. No formal order or further notice is required, the tentative ruling providing sufficient notice. *** ITEM 5 03AS03423 RICKELLE MCCORMACK VS. DAVID PETTIS Nature of Proceeding: MOTION TO REOPEN DISCOVERY Filed By: FARLEY, MICHAEL J. Defendant's Motion to Reopen Discovery is granted insofar as defendant may subpoena medical records about plaintiff's medical condition since the arbitration but is otherwise denied. The pre-arbitation cut-off was early June of 2004. There is good cause to reopen discovery for this limited purpose so that defendant has updated medical records about plaintiff's injuries, and there is no prejudice to plaintiff since the trial date is not until July 11, 2005. Defendant was diligent in discovery before the arbitration and therefore the purpose of judicial arbitration is not frustrated by reopening discovery to this limited extent. The minute order is effective immediately. No formal order or further notice is required, the tentative ruling providing sufficient notice. Department 53 April 28, 2005 Page 4 ______________ *** ITEM 6 03AS03847 MELANIE BONNETT VS. SPRINT LONG DISTANCE SERVS. INC, ET AL Nature of Proceeding: MOTION FOR SANCTIONS Filed By: JONES, JOMA Defendants' Motion for Terminating Sanctions is unopposed and is granted. Plaintiff has willfully failed to obey two court orders requiring that she provide responses to discovery. Plaintiff failed to communicate with her attorney, resulting in his withdrawal as her attorney, and she has conducted no discovery. It appears she has abandoned her claims against defendants based on the Declaration of Hartman wherein he states that plaintiff wished to drop her lawsuit and "get a new start" with Sprint. A terminating sanction is appropriate. The monetary sanction previously ordered and not paid may be incorporated in the proposed judgment. Defendants shall prepare a proposed order and dismissal pursuant to CRC 391. Counsel for defendants shall be available for a telephone appearance at the time of the hearing in the event plaintiff appears for oral argument, as defendant did not comply with Local Rule 3.04(b), which requires notice of the tentative ruling progam in the notice of motion. *** ITEM 7 04AS01249 NICK HAMMADES VS. ALIREZA ALAEI, ET AL Nature of Proceeding: MOTION TO SET ASIDE DEFAULT Filed By: RIMMER, KIRK S. Defendant's Motion to Set Aside Default entered September 15, 2004 is denied. This motion is yet another attempt at reconsideration of an earlier ruling. The court has no authority to reconsider the motion because it does not comply with CCP 1008(b) as it was not made within 10 days of the denial of the motion to set aside the default which was on January 4, 2005. Even if the court had authority to reconsider the motion the court would deny the motion after reconsideration. One "new fact" in support of the motion is that defendant's former attorney did not succeed in setting aside the default because he committed "positive misconduct" by not knowing how to present evidence in a law and motion matter and misunderstanding basic rules of procedure set forth in Local Rules, Rules of Court and the Code of Civil Procedure. Defendant also relies on the "new fact" that he was never served with the summons and complaint. The attorney fault provisions of CCP 473b do not apply because the actions of the former attorney did not result in the default, since defendant did not seek legal advice until after the default was entered. (Defendant's declaration, paragraph 3) Moreover, the declaration of Tariq Kunwar does not even qualify as as a declaration of fault, as he states the default was entered through the client's excusable neglect, not his inexcusable neglect. The other "new fact" in support of the motion is the defendant's declaration that he was not served with the summons and complaint (the former attorney mistakenly thought his declaration was sufficient to establish his client was not served). Even if this new fact could not have, with reasonable diligence, been presented at the first motion to set aside default, the court is not persuaded that defendant was not properly served or had no notice of the action in time to defend it. The fact that the registered process server may have erred about the weight of the person served does not negate proper service. Given the declaration of the professional process server, it appears that defendant was properly served with the summons and complaint. Any credibility issues are resolved in favor of the professional process server who has no stake in the outcome. The court computer system reflects that no default judgment has been entered in this case. The minute order is effective immediately. No formal order or further notice is required, the tentative ruling providing sufficient notice. Department 53 April 28, 2005 Page 5 ______________ *** ITEM 8 04AS01249 NICK HAMMADES VS. ALIREZA ALAEI, ET AL Nature of Proceeding: Motion To Quash Service Summon Filed By: RIMMER, KRIK S. This motion was continued to this date from March 18, 2005. Motion to Quash Service of Summons is denied. The motion to set aside the default was denied, and this motion cannot be considered absent setting aside of the default. See Weil & Brown, California Practice Guide, Civil Procedure Before Trial, section 4:429. Since the court has already considered and rejected the earlier motion to set aside judgment based on lack of proper service, this motion is in effect a motion for reconsideration without compliance with CCP section 1008. While it may be true the the prior attorney did not take the proper steps to set aside the default, the court is unaware of that being authority to quash the service of summons. The court bent over backwards to allow defendant's prior attorney to try to cure multiple defects in his motions. All things must end sometime. While the court realizes that defendant's prior attorney did not provide effective representation, that does not justify multiple chances to attempt to set aside the default. Defendant does has a remedy by suing his prior attorney for malpractice. The minute order is effective immediately. No formal order or further notice is required, the tentative ruling providing sufficient notice. *** ITEM 9 04AS02567 STAN BOWERS, ET AL VS. ELKHORN TRUST, ET AL Nature of Proceeding: Default Hearing Filed By: COOMBS, RICHARD E. Appearance Required. *** Department 53 April 28, 2005 Page 6 ______________ ITEM 10 04AS02791 NORTHERN CA COLLECTION SERVICE INC. VS. ROD TRANSPORT, INC. Nature of Proceeding: Motion To Compel Filed By: CRIBB, STEVEN D. Plaintiff's Motion to Compel Further Responses to Special Interrogatories Nos. 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, and 16, and further responses to Requests for Production Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, and 16 is granted. Compliance to be without objections on or before May 9, 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 or further notice is required, the tentative ruling providing sufficient notice. *** ITEM 11 04AS03221 MELODI F. HARRIS VS. PACIFIC EVALUATIONS MED GRP, ET AL Nature of Proceeding: MOTION TO QUASH Filed By: HARRIS, MELODI F. Plaintiff's Motion to Quash is denied without prejudice because it was not served and filed in a timely manner. Motions must be filed and served 16 court days before the hearing, and if a motion is served by mail, five additional calendar days are added. Plaintiff served the motion by mail and filed it on April 11, providing only 13 court days notice. Defendant Pacific Evaluations has objected to the lack of timely notice. The minute order is effective immediately. No formal order is required, the tentative ruling providing sufficient notice. *** Department 53 April 28, 2005 Page 7 ______________ ITEM 12 04AS03519 NSHAIJA MUSIIME VS. MEDICAL BOARD OF CALIFORNIA Nature of Proceeding: Demurrer Filed By: Defendant Medical Board of California's Demurrer to the Complaint is sustained without leave to amend for failure to state a cause of action. Plaintiff was employed by the defendant and resigned in 2003. Plaintiff appealed his resignation and contended that he resigned under pressure due to racial harassment, among other things. The ALJ's opinion of October 21, 2003, adopted by the DPA, found no merit to plaintiff's claims and held that he had not made a prima facie case of discrimination. Plaintiff did not seek reconsideration of the ALJ decision and did not file a writ of mandate in Superior Court challenging the ALJ's decision. Plaintiff is collaterally estopped from bringing this action because he failed to exhaust his judicial remedy. Plaintiff chose a forum to pursue his discrimination claim, and failed to appeal the adverse ruling. Under Page v County of Los Angeles (2004) 123 Cal.App.4th 1135, 1141-42, plaintiff is estopped from making a duplicative claim through a different administrative agency. The motion to strike claim for punitive damages is granted. Plaintiff's late filed opposition does not address how the defects can be cured, therefore no leave to amend is being granted The minute order is effective immediately No formal order is required, however defendant shall send a copy of the minute order to plaintiff and submit an order of dismissal pursuant to CRC 391. *** ITEM 13 04AS03785 JOSHUA ERIC DRYDEN, JR. VS. CARY MORENO-HUNT, M.D., ET AL Nature of Proceeding: Petition To Compel Arbitration Filed By: PIERROU, YVONNE M. Dropped. Department 53 April 28, 2005 Page 8 ______________ *** ITEM 14 04AS04417 AHMED ALI, ET AL VS. MORTON'S OF CHICAGO/SAC. INC. ETAL Nature of Proceeding: DEMURRERS (2) Filed By: PALMER, CARY G. Defendant Morton of Chicago/Sacramento Inc. et al's Demurrer to Plaintiff's Class Claims for Violation of Labor Code section 226.7 in the Amended Complaint is overruled. Defendant Morton of Chicago/San Francisco Inc. et al's Demurrer to Plaintiff's Unfair Competition Claim in the Amended Complaint is overruled. Defendants have filed two separate demurrers to the same First Amended Complaint, one directed to the class allegations, the other to the claims made by plaintiffs in their individual capacities. The First Amended Complaint alleges a 1st cause of action for violation of Labor Code section 226.7 prohibiting employers from requiring any employee to work during any meal or rest period and a 2nd cause of action violation of Business & Professions Code section 17200. The demurrer to the class allegations of the 1st cause of action is overruled. Defendants contend that 1st cause of action fails to state sufficient facts to constitute a cause of action on behalf of a class, as there is no well-defined community of interest among the class members, there is an adequate and fair remedy before the Division of Labor Standards Enforcement available to plaintiffs, thus plaintiffs cannot show that a class action is superior, and plaintiffs are not adequate representatives of the class. Moving parties assert that there are no common questions of fact, and individual questions predominate over questions affecting the entire class. The Court declines to make that determination at this time. It is more appropriately addressed in a motion for class certification. The demurrer to the class allegations of the 2nd cause of action is overruled. Defendants demur to the 2nd cause of action for violation of Business & Professions Code section 17200, on the grounds that it fails to state facts sufficient to constitute a cause of action, and further because plaintiffs seek monetary damages which are not recoverable under Business & Professions Code section 17200. Plaintiffs have alleged a request for an injunction and restitution. The issue of the size of the class, based upon the applicable statute of limitations, is not appropriately addressed on demurrer. The alternate demurer to the individual allegations of the 2nd cause of action is overruled. Defendants demur to the 2nd cause of action for violation of Business & Professions Code section 17200, on the grounds that it fails to state facts sufficient to constitute a cause of action, as plaintiffs are not employed by branches of Morton's of Chicago other than Sacramento, and because plaintiffs' have not do not have standing to bring a representative action under Prop. 64. The Court finds that by its terms Proposition 64 is not to be applied retroactively to matters pending at the time of its enactment. Although the appellate opinions are in conflict on this issue, no opinions have issued from the Third District Court of Appeal or the California Supreme Court, to date. The well-settled rule is that statutes, and initiatives, are presumed to operate prospectively only absent an explicit expression otherwise. Tapia v. Superior Court (1991) 53 Cal.3d 282, 287. The language of Proposition 64 is completely silent on whether it is to be applied retroactively. The voter information material is similarly silent. The court is persuaded that this matter is governed by Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1194 (holding that Proposition 51 operated prospectively only as the language did not indicate the measure was to apply retroactively). While the Proposition 64 requirement of actual injury for standing goes to the very existence of a cause of action under Business & Professions Code section 17200, the Court finds that Proposition 64 does not apply to this complaint, which was filed prior to its enactment. Such retroactive application could adversely affect the substantive rights of those persons who were not parties but whose rights and interests were being pursued in this lawsuit. Defendants shall file and serve their Answers to the First Amended Complaint not later than Monday, May 9, 2005. This minute order is effective immediately. No formal order nor further notice is required, the tentative ruling providing sufficient notice. 4417203 Department 53 April 28, 2005 Page 9 ______________ *** ITEM 15 04AS04553 RICHARD A. LUCICH, ET AL V.S JOEL KENNETH LUCICH, ET AL Nature of Proceeding: Motion To Strike Filed By: Plaintiffs' Motion to Strike Portions of Defendants' Answer is denied. In this partition action, plaintiffs seek to strike portions of defendants' answer which are set forth to controvert the material allegations of the complaint. As the complaint seeks an equitable remedy, the Court is unable to determine on the limited information presented that the allegations of the answer to the complaint are "false, irrelevant and improper." Moving party has not established that there was no consideration for the modification of the agreement, that the modification is required to be in writing, as it was allegedly partially performed, nor that Janet Lucich did not consent to her husband's conveyance of her interest in the real property. This minute order is effective immediately. No formal order nor further notice is required, the tentative ruling providing sufficient notice. 4553203 *** ITEM 16 04AS05135 F & H CONSTRUCTION, INC. VS. PLACER CNTY WATER AGENCY ETAL Nature of Proceeding: Demurrer Filed By: YUHAS, GEORGE Defendant Nova Chemical's Demurrer to the 1st amended complaint, 1st cause of action for Declaratory Relief and 2nd cause of action for Negligence is ruled on as follows: Plaintiff F&H contracted with Defendant Placer County Water Agency to construct certain improvements in connection with the Foothill Water Treatment Plant. F&H contracted with I. Kruger Inc. to provide "actiflo filter elements" to use in the project. Kruger contracted with G.T. Plastics which provided certain modules used in the actiflo filter elements. Plaintiff alleges that moving defendant Nova supplied defective material for use in plastic modules produced by G.T. Plastics. The filter elements were allegedly misrepresented by Nova to be flammable only if exposed to high temperatures. Plaintiff alleges the filter elements "sagged" when there was a fire. As a result of the fire, plaintiff alleges disputes have arisen between the parties as to who is liable for the costs and expenses incurred from the fire. 1st cause of action Declaratory Relief: Sustained with leave to amend. It appears the controversy in the 1st cause of action is between the plaintiff (an insured), the other insured (Placer), and the insurance company (Essex) arising out of the insurance contract. It is not necessary to "join" moving defendant in this cause of action since they are not a party to the insurance contract or any other contract with plaintiff. Plaintiff is given leave to amend to state a cause of action for declaratory relief as to this defendant. 2nd cause of action Negligence: Overruled. The allegations in paragraph 28 regarding the statements made by Nova that the material they provided was "non-flammable but will burn on prolonged exposure to flame or high temperature", when actually the material was highly flammable and caused rapid spreading of the fire, are sufficient to state a cause of action for negligence. Plaintiff may file and serve a 2nd amended complaint on or before May 9, 2005. Response to be filed and served within 10 days of service of the amended complaint, 15 days if served by mail. Although not required by rule or statute, if the response is a demurrer the court requests that moving party attach a copy of the amended complaint to the moving papers. The minute order is effective immediately. No formal order or further notice is required, the tentative ruling providing sufficient notice. Department 53 April 28, 2005 Page 10 ______________ *** ITEM 17 04CS01391 HARRAH'S OPERATING CO., INC., ET AL VS. MICHAEL J. MOORE Nature of Proceeding: OSC RE: SALE OF DWELLING Filed By: STEARMAN, JAMES A. Application for Order for Sale of Dwelling is unopposed and is granted. The OSC was served by mail on the defendant and posted at the residence in accordance with CCP 704.770(b). Judgment creditor to submit a formal order pursuant to CCP 704.780(b). *** ITEM 18 05AS00065 U.S. NATIONAL LEASING VS. TOM AMBREY, ET AL Nature of Proceeding: Default Hearing Filed By: This matter was heard on April 22, 2005. *** ITEM 19 05AS00825 CARLENE ANDERSON VS. JUDGE LOREN MCMASTER Nature of Proceeding: Demurrer Filed By: KRABBENHOFT, WILLIAM A. Judge McMaster recuses himself from this matter pursuant to CCP 170.1 This case is transferred to Department 47 for assignment. *** ITEM 20 05AS01345 HIRENDRA SHARMA, ET AL VS. FUJIKO IINO HOBLITZELL, ET AL Nature of Proceeding: Preliminary Injunction Filed By: TRENKLE, MICHAEL A. Continued to 06/09/2005 Department 53 April 28, 2005 Page 11 ______________ *** ITEM 21 05CS00137 IN RE: RANDY DAVID PRICE Nature of Proceeding: Petition For Change Of Name Filed By: PRICE, RANDY Petition for Name Change is granted on condition proof of publication is filed in Department 53 by the time of the hearing. *** ITEM 22 03AM06065 MARIA IBARRA VS. BRAD KREGER Nature of Proceeding: MOTION TO TRANSFER TO SMALL CLAIMS Filed By: SULLIVAN, DANIEL J. Dropped from calendar for insufficient notice. The motion was filed and served by mail on April 5, providing 16 court days and one extra day for mailing. Amended CCP 1005(b) requires 16 court days notice plus five calendar days for mailing. No opposition was filed. The court notes that attorney withdrawal motions require the mandatory judicial council form. *** ITEM 23 04AM07513 LEGNON CONSTRUCTION, INC., ET AL VS. CLYDE SEWELL, ET AL Nature of Proceeding: Motion To Reclassify Limited C Filed By: POWELL, JOSEPH E. Cross-complainant/defendants' Motion to Reclassify this case to one of unlimited jurisidiction is unopposed and is granted on condition moving parties pay the transfer fee before the time of the hearing. This case is reclassified as one of unlimited jurisdiction. The minute order is effective immediately. No formal order or further notice is required, the tentative ruling providing sufficient notice. ***