&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 L. BARCLAY, Bailiff April 29, 2005, 09:00 ITEM 1 01AS07523 MAUREEN HARMAN VS. BRIAN R. WEST, M.D., ET AL Nature of Proceeding: MOTION FOR EVIDENTIARY SANCTIONS Filed By: SCHUERING, LEO H. JR. Although Dr. Lackner has been withdrawn and apparently has medical problems, he must still prepare a report. Plaintiff was ordered to obtain and produce a report from Dr. Lackner but has failed to do so. Kennedy v Superior Court (1998) 64 C.A.4th 674. Defendant's motion is granted; the report, if one exists, and any opinions therein, are inadmissible. Of course, this does not preclude plaintiff from seeking to have another I.M.E. taken if Dr. Lackner is not able to participate as an expert witness. All requests for sanctions are denied. This minute order is effective immediately. No formal order is needed, C.R.C. rule 391, nor is further notice of this ruling required; C.C.P.  1019.5. c Department 54 April 29, 2005 Page 2 ______________ *** ITEM 2 02AS00790 STATE OF CALIFORNIA ET AL VS. PACIFIC BELL TELEPHONE ET AL Nature of Proceeding: Demurrer Filed By: HADDAD, MARK E. Continued to 05/05/2005 *** ITEM 3 02AS03860 MARIAN VANLAECKEN, ET AL VS. DANIEL S. MITCHELL, ET AL Nature of Proceeding: MOTION TO ENFORCE SETTLEMENT Filed By: LOEWEN, MICHAEL R. Dropped. *** ITEM 4 02AS05812 JERRY WOJKE, ET AL VS. J. GILBERT MOORE, ET AL Nature of Proceeding: MOTION TO COMPEL (SPEC ROG) Filed By: LARSON, ERIK P. Defendants' motion is granted, in part; opposition was not received by the court. Plaintiffs and cross-defendants Jerry Wojke and Cheryl Butcher-Wojke are ordered to serve verified answers and responses, without objections, to Defendant and Cross-complainant J. Gilbert Moore's Special Interrogatories and Requests for Production of Documents, sets one, no later than Monday, May 9, 2005. The request for a monetary sanction is denied as the motion is unopposed. This minute order is effective immediately. No formal order is needed, C.R.C. rule 391, nor is further notice of this ruling required; C.C.P.  1019.5. c Department 54 April 29, 2005 Page 3 ______________ *** ITEM 5 03AS01730 KENNETH BENNETT, ET AL VS. WILLIAM E. THOMSON, ET AL Nature of Proceeding: MOTION TO REOPEN DISCOVERY Filed By: FRIEDRICH, KATHLEEN T. The motion to reopen discovery is granted only to the extent that if an accounting has been completed, the report must be produced to plaintiffs. The motion is otherwise denied as good cause for further discovery is not shown. This minute order is effective immediately. No formal order is needed, C.R.C. rule 391, nor is further notice of this ruling required; C.C.P.  1019.5. c *** ITEM 6 03AS03586 MICHAEL SCHUBERT VS. ROGER SWANSON, ET AL Nature of Proceeding: SUMMARY JUDGMENT Filed By: DYER, GREGORY To be heard by Judge Chang in department 32. *** ITEM 7 03AS06824 KEVIN SPICCI, ET AL VS. BANK OF AMERICA Nature of Proceeding: Motion To Compel Filed By: WECHSLER, GLENN H. Dropped. Department 54 April 29, 2005 Page 4 ______________ *** ITEM 8 04AS01784 ROBERT KUBICEK ARCH. AND ASSOC, INC. VS. URBAN RETAIL PARTNE Nature of Proceeding: Motion To Strike Filed By: BRANDON, DAVID L. Continued to 06/20/2005 *** ITEM 9 04AS01784 ROBERT KUBICEK ARCHITECTS, ET AL. VS. URBAN RETAIL PARTNERS, Nature of Proceeding: DEMURRER Filed By: BRANDON, DAVID L. Continued to 06/20/2005 *** ITEM 10 04AS02288 JOHN DENNIS CAMPBELL VS. JOHN DOE Nature of Proceeding: Default Hearing Filed By: STEFANKI, JOHN E. Appearance Required. *** ITEM 11 04AS02826 SAAHDI COLEMAN VS. SACRAMENTO CO MAIN JAIL, ET AL Nature of Proceeding: MOT CRT TO GRANT THE MOT FOR DEFAULT OR JUDGMENT Filed By: COLEMAN, SAAHDI The request for a default judgment is denied. Plaintiff did not submit any evidence to support the damages sought, which must be done even if a default is entered. The Court clerk is requested to send a copy of the court's ruling to the plaintiff. This minute order is effective immediately. No formal order is needed, C.R.C. rule 391. c Department 54 April 29, 2005 Page 5 ______________ *** ITEM 12 04AS02854 JAMES WILLIAMS, ET AL VS. AL SEASTRAND Nature of Proceeding: Summary Judgment Filed By: SEASTRAND, AL Defendant Seastrand moves for summary judgment. The motion is supported by Admissions Deemed Admitted by Court order on December 28, 2004. The admissions are sufficient to meet defendant's burden as the moving party. Plaintiffs' opposition, which consists of a declaration by their counsel and attached exhibits, states plaintiffs did not communicate with counsel and therefore did not initially respond to discovery served on them, including the Requests for Admissions. After the motion for summary judgment was filed, plaintiffs and counsel were reunited and plaintiffs thereafter served responses to all outstanding discovery, including the Requests for Admissions which had already been deemed admitted. Plaintiffs' counsel states he intends to file a motion to have the Deemed Admissions set aside as soon as defendant responds to discovery served on him on February 9, 2005. Counsel also seeks a continuance pursuant to C.C.P.  437c(h). Plaintiffs' opposition is not sufficient to meet their burden. The Admissions were Deemed Admitted and defendant is entitled to rely on those admissions without having to produce the actual release or until they are set aside. Plaintiffs have been in communication with their counsel since February yet made no motion to set aside the Admissions despite being served with the motion for summary judgment on January 21, 2005 setting a hearing for April 29, 2005, 98 days later. The request for a continuance is denied. The motion for summary judgment is granted. See request for judicial notice, which is granted and declaration of Havens. The Court will sign the proposed judgment. Costs to be sought pursuant to C.R.C. rule 870. This minute order is effective immediately. No formal order is needed, C.R.C. rule 391, nor is further notice of this ruling required; C.C.P. 1019.5. c Department 54 April 29, 2005 Page 6 ______________ *** ITEM 13 04AS03112 WESTERN SIERRA NATL BANK VS. ENERGY MANAGEMENT SYSTEMS, ETAL Nature of Proceeding: Summary Judgment Filed By: PLANT, FORREST JR. Plaintiff moves for summary judgment, presenting undisputed evidence that defendant Energy Management Systems borrowed money from it pursuant to certain promissory notes, the last one being entered into on January 23, 2004. The January 23, 2004 agreement was for the principal amount of $200,000; the Change in Terms Agreement states the current outstanding principal balance is $148,552.56 with $51,447.44 undisbursed. The note was guaranteed by defendant John P. Mattice. Defendant Energy Management agreed to pay $200,000, together with interest. Energy Management defaulted and has not made the payments required under the agreement. The principal amount of $198,552.56 is owed. Defendants do not dispute that they are liable for nonpayment, but attempt to create a triable issue of material fact by having Mr. John H. Mattice state he does not have a record of disbursements from the credit line but his recollection is that disbursements, if any, would total significantly less than $50,000. He disputes that the balance owed to the Plaintiff increased to $198,552.56 by March 25, 2004. As the party moving for summary judgment, it is plaintiff's burden to show there are no triable issues of material fact and it is entitled to judgment as a matter of law. The declaration of Ms. Taylor is sufficient to meet plaintiff's burden. The burden then shifts to defendants to create a triable issue of material fact. Mr. John H. Mattice's declaration is not sufficient, as noted above, to create a triable issue of material fact. The motion for summary judgment is granted. Plaintiff's objection to paragraph 6 of the Mattice declaration is sustained. Plaintiff also moves for summary adjudication of two affirmative defenses and two "issues". The motion for summary adjudication of the two "issues" is denied. The Court cannot, pursuant to C.C.P.  437c, adjudicate "issues" except insofar as they completely dispose of a cause of action. The two "issues" do not. Nor does it matter that defendants' memorandum of points and authorities states they do not object to summary adjudication that under the terms of the Change in Terms Agreement and the Commercial Guaranty they are liable for the amount found to be actually due. If defendants wish to concede liability, they may do so, but the Court will not solely adjudicate, pursuant to C.C.P.  437c, the issue of liability. Finally, as to the two affirmative defenses, the Court notes they are not stated in plaintiff's separate statement, with supporting facts and evidence, as required by C.R.C. rule 342(h). The motion for summary adjudication of the two affirmative defenses is denied. This minute order is effective immediately. No formal order is needed, C.R.C. rule 391, nor is further notice of this ruling required; C.C.P. 1019.5. c Department 54 April 29, 2005 Page 7 ______________ *** ITEM 14 04AS03200 JOSEPH MOHAMED SR. VS. JOHN SARGETIS Nature of Proceeding: Motion To Dismiss Filed By: FOONDOS, STEPHEN J. Plaintiff, having failed to file an amended complaint within the time allowed by the Court, the motion to dismiss is granted. C.C.P. 581(f). Opposition was not received by the Court. This minute order is effective immediately. No formal order is needed, C.R.C. rule 391, nor is further notice of this ruling required; C.C.P.  1019.5. c *** ITEM 15 04AS03866 JAMES BREINER VS. BANK OF AMERICA CORPORATION Nature of Proceeding: Demurrer Filed By: HOLLORAN, PETER D. Dropped. *** ITEM 16 04AS03902 DOUGLAS T. FOSTER VS. GAYE WELCH-BROWN, ET AL Nature of Proceeding: Motion To Strike Filed By: BROWN, WILLIAM L. The motion to strike is denied. C.C.P. 475. This minute order is effective immediately. No formal order is needed, C.R.C. rule 391, nor is further notice of this ruling required; C.C.P. 1019.5. c Department 54 April 29, 2005 Page 8 ______________ *** ITEM 17 04AS03902 DOUGLAS T. FOSTER, VS. GAYE WELCH-BROWN, ET AL. Nature of Proceeding: MOTION TO STRIKE Filed By: WELCH-BROWN, GAYE The motion to strike is denied. C.C.P.  475. This minute order is effective immediately. No formal order is needed, C.R.C. rule 391, nor is further notice of this ruling required; C.C.P. 1019.5. c *** ITEM 18 05AS00374 BRUCE WAFFER VS. SUE POPPEN, ET AL. Nature of Proceeding: Demurrer Filed By: CARROLL, JOSEPH W. The general and special demurrers of defendants Sue Poppen and McClellan Mobilehome Park are dropped as moot. Plaintiff filed a dismissal of the entire action on April 13, 2005. c Department 54 April 29, 2005 Page 9 ______________ *** ITEM 19 05AS01374 JULIE GARCIA VS. LISA G. PORRAZ Nature of Proceeding: Preliminary Injunction Filed By: SARGETIS, JOHN S. The request for a preliminary injunction is dropped. The court file contains the O.S.C. re Preliminary Injunction but no proof of service showing the O.S.C. was properly served. The O.S.C. states proof of service of the O.S.C., verified Complaint, points and authorities and declaration of John S. Sargetis shall be filed on or before April 9, 2005. *** ITEM 20 05AS01440 DUDLEY ROBNETT VS. MORTGAGE ELECTRONIC REGISTRN SYSTEM, ETAL Nature of Proceeding: Preliminary Injunction Filed By: BRIGGS, CHARLES Dropped. *** ITEM 21 05CS00248 COLUMBIA CR SERVICES, INC. VS. ELIZABETH A. DINGMAN, ET AL Nature of Proceeding: Petition To Confirm Arb Award Filed By: PUGH, JOHN J. Columbia Credit Services, Inc.'s Petition is granted; the arbitration award of February 7, 2005 is confirmed. Petitioner to recover $42,834.11 principal, interest of $2,281.36, costs of $353.80 and reasonable attorney's fees of $520 for a total judgment of $45,989.27. The Court will sign the proposed judgment. This minute order is effective immediately. No formal order is needed, C.R.C. rule 391, nor is further notice of this ruling required; C.C.P.  1019.5. c Department 54 April 29, 2005 Page 10 ______________ *** ITEM 22 05CS00306 IN RE: CARLA LEE HARGRAVE Nature of Proceeding: Petition For Change Of Name Filed By: CUNNINGHAM, PHILLIP M. The Petition for Change of Name is granted. *** ITEM 23 05CS00308 IN RE: JOHNATHAN CRAWLEY Nature of Proceeding: Petition For Change Of Name Filed By: CRAWLEY, JOHNATHAN MICHAEL The Petition for Change of Name is granted on condition proof of publication is filed in department 54 by the day of the hearing. *** ITEM 24 05CS00440 MELANIE STITT VS. STEVEN POUNDS, ET AL Nature of Proceeding: Petition To Compel Arbitration Filed By: DOWELL, KELLEY M. A petition shall be heard in a summary way in the manner and upon the notice provided by law for the making and hearing of motions, except that not less than 10 days notice of the date set for the hearing on the petition shall be given. The notice provided for the making and hearing of motions, C.C.P.  1005, requires 16 court days, plus 5 calendar days, if notice is given by mail. Service of the Petition on April 4, 2005, is insufficient. Defective notice deprives the Court of jurisdiction to consider the Petition. Lee v Placer Title Co. (1994) 28 C.A.4th 503, 509, 511. *** ITEM 25 02AM03204 PROFESSIONAL CREDIT CONTROL VS. SAVANNAH SEWELL Nature of Proceeding: Motion To File Amended Complai Filed By: PUGH, JOHN J. The motion is dropped. The motion was served by mail on April 1, 2005 for a hearing on April 29. The notice does not comply with C.C.P. 1005, which requires 16 court days, plus 5 calendar days, if notice is served by mail. Defective notice deprives the court of jurisdiction to consider the motion. Lee v Placer Title Co. (1994) 28 C.A.4th 503, 509, 511. Department 54 April 29, 2005 Page 11 ______________ ***