&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 AMOUNToS 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 L. BARCLAY, Bailiff April 29, 2005, 02:00 ITEM 1 01AS02293 WILLIAM MENDOZA VS. CENTRAL VALLEY ENTERTAINMENT, INC. ET AL Nature of Proceeding: MOTION TO SET ASIDE DEFAULT Filed By: SARGETIS, JOHN S. Dropped. The parties have agreed to stipulate to set aside the default of defendants. *** ITEM 2 02AS02509 DONALD M WANLAND JR, ETAL VS. L/O OF MASTAGNI, HOLSTEDT ETAL Nature of Proceeding: CLAIM OF EXEMPTION Filed By: KEREKES, KATHLEEN M. This matter was continued from April 22, 2005. The court's computer system does not yet reflect whether the 3rd party claim filed by GMAC has been calendared. The stay of execution issued by Judge Abbott to preserve the status quo expires on April 29 at 4:00pm (See Ex. 2 Wanland's Reply filed April 20. The claim of exemption filed by Judgment Debtor is granted as to the Cadillac Escalade. The court is persuaded by the evidence that plaintiff Wanland does not have an interest in the leased vehicle that is subject to attachment. The sheriff is ordered to return the Escalade to the judgment debtor forthwith. The claim as to the Mercedes is denied as it is premature. With the return of the Cadillac Escalade there is no need for an additional vehicle to use in his business. The only grounds raised in opposition to the claim of exemption are that judgment debtor did not file a financial statement and that there was no evidence of the lease. However, no financial statement is required because the tools of the trade and vehicle exemptions are not exemptions for necessities to support the judgment debtor and his spouse under CCP 703.530). The judgment debtor has established that he is not the owner of the vehicle, as it is leased from GMAC, and that he has no equity in the Escalade. The Court takes judicial notice of the Third Party Claim filed by GMAC on April 14, 2004, which establishes that Judgment debtor has no equity in the vehicle. There is no admissible evidence before the Court that established that plaintiff Wanland has any equity in the vehicle that would be subject to attachment. Since the owner of the vehicle appears to be GMAC and not plaintiff Wanland, there is no basis for the attachment. This minute order is effective immediately. No formal order is required, the tentative ruling being sufficient notice. Department 53 April 29, 2005 Page 2 ______________ *** ITEM 3 03AS05475 MARCIA A. EDGAR VS. SACTO ROOFING CO., INC., ET AL Nature of Proceeding: DEMURRER/MOTION TO STRIKE Filed By: JAFFE, ROGER V. Plaintiff does not oppose the motion to strike the reference to Welfare and Institutions Code Section 15610 and the motion is granted. The demurrer to the entire third amended complaint on the ground of uncertainty is overruled. Plaintiff has identified and named Does One and Two, however, she has not alleged any facts as to them. This may be a reason for the Does to demur but it is not a basis for Sacramento Roofing to demur. The demurrer to the sixth cause of action for fraud is overruled. These allegations are sufficient to pass muster at the pleading stage. Whether plaintiff can prove fraud is not an issue before the court. Defendant's request for judicial notice of a transcript is granted. "The court will take judicial notice of records, such as admissions, answers to interrogatories, affidavits, and the like, when considering a demurrer, only where they contain statements of the plaintiff or his agent which are inconsistent with the allegations of the pleading before the court." Del E. Webb Corp. v. Structural Materials Co. (1981) 123 CA 3d 593, 604-605. Having considered the transcript the demurrer is still overruled. Sufficient facts are alleged to state a fraud cause of action. Defendant shall file its answer by May 9, 2005. This minute order is effective immediately. No formal order is required, the tentative ruling being sufficient notice. *** ITEM 4 04AS00269 RACHEL DOUCETTE VS. ARENA TOW Nature of Proceeding: Motion To File Amended Complai Filed By: BARRON, DEBORAH Plaintiff's motion for leave to file an amended complaint is granted. Defendant has objected to the motion on the ground it is untimely because it was served 15 court days before the hearing. However, defendant has also opposed the motion on the merits and has waived this objection. Plaintiff announced her intention to file an amended complaint over a year ago. In January 2005 she asked defendant to stipulate to an amendment and it agreed. In February defendant served its motion for summary judmgent, set for hearing on May 19, 2005. The motion addresses the original complaint. The amended complaint removes the causes of action for breach of contract, fraud, and breach of fiduciary duty and adds causes of action for bailment, res ipsa loquitur, and gross negligence. It also adds three individuals, managers and owners of defendant. Leave to amend is liberally granted, even on the eve of trial and here, even though it means the motion for summary judgment must be cancelled or continued. Plaintiff shall file and serve the amended complaint forthwith. This minute order is effective immediately. No formal order is required, the tentative ruling being sufficient notice. Department 53 April 29, 2005 Page 3 ______________ *** ITEM 5 04AS04433 SHELLEY ROGERS VS. JASON H. SOLOMON, MD., ET AL Nature of Proceeding: MOTION TO APPEAR PRO HAC VICE Filed By: FITZSIMMONS, J. MICHAEL Dropped. The application is untimely. It must be filed and served 16 court days before the hearing plus five calendar days if mailed. CCP 1005(b). *** ITEM 6 04CS01743 IN RE: 6461 TUPELO DRIVE Nature of Proceeding: PET TO DEPOSIT, DISCHARGE AND DISTRIBUTE Filed By: VIGIL, DARLENE C. No claimants have filed a claim for the funds deposited with the court on January 31, 2005. Therefore the clerk shall distribute the proceeds to the trustor, Kathleen M. O'Neill. *** ITEM 7 05AS00185 DARLENE DAVISON VS. CLAUDEAN S. MEDLOCK. ET AL Nature of Proceeding: Demurrer Filed By: ROBIE, TODD R. Defendant's demurrer is unopposed, which is taken as a concession to its merits, and it is sustained without leave to amend. Plaintiff has failed to state a cause of action. In addition, as she has been discharged as administrator of the estate of Donald Berard, she does not have standing to bring this action. Defendant's request for attorney's fees is denied. They are not warranted and even if they were, defendant must follow the procedures of CCP 128.7. Defendant shall submit a formal order and judgment of dismissal. Department 53 April 29, 2005 Page 4 ______________ *** ITEM 8 05AS00323 GENA HAYNES VS. JCM PARTNERS LLC Nature of Proceeding: Demurrer Filed By: JOHNSTON, KIM Defendant's demurrer to the second cause of action for constructive termination is sustained with leave to amend. Plaintiff has allged offensive and harassing conduct by her Manager, Patrick. However, she also alleges that defendant transferred her to another location where she had a different manager. After she was transferred she alleges her hours were cut and her schedule changed and she was placed on probation. The conduct she complains of after her transfer is not sufficiently egregious to create working conditions so intolerable that she had no choice but to quit. Turner v Anheuser- Busch, Inc. (1994) 7 Cal.4th 1238, 1251. Plaintiff argues that the court must also consider the conduct of Patrick. This assertion fails because he was not her manager at the relevant time. The demurrer to the third cause of action for breach of an implied contract not to terminate but for good cause is also sustained with leave to amend. Plaintiff's allegations are conclusionary and without sufficient factual foundation. It is not sufficient to allege defendant's policies standards, and practices included a promise not to terminate absent good cause. Plaintiff has not opposed the demurrer to the fourth cause of action, breach of the covenant of good faith and fair dealing. As to that cause of action the demurrer is sustained without leave to amend Plaintiff may file and serve an amended complaint by May 9, 2005. Responsive pleadings shall be filed 10 days thereafter, 15 days if service is by mail. If defendant chooses to demur to the complaint the court requests that it attach a copy of the amended pleading to its papers, although it is not required to do so. This minute order is effective immediately. No formal order is required, the tentative ruling being sufficient notice. Department 53 April 29, 2005 Page 5 ______________ *** ITEM 9 05AS00831 CITIBANK VS. RONALD A. PONDER, ET AL Nature of Proceeding: Writ Of Attachment Filed By: BREEN, SUSAN KAY Plaintiff's application for writ of attachment is unopposed and granted. Plaintiff shall file an undertaking in the amount of $10,000.00. Plaintiff shall submit a formal order on Judicial Council form. *** ITEM 10 02AM08677 SEQUOIA CONCEPTS, INC., ETAL VS. HAZARAPET KARAPETYAN Nature of Proceeding: CLAIM OF EXEMPTION Filed By: SIEGEL, EDMOND B. The claim of exemption is denied to the extent of $350.00. That amount is subject to levy as it reflects payments made to other creditors and entertainment. ***