NOTICE:
To request limited oral argument on any matter on this calendar, you
must call the Court at (916) 440-7858 (Department 27) by 4:30 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.
TENTATIVE RULINGS
Department 27
Sacramento Superior Court
800 H Street
Hon. Ronald B. Robie, Judge
Peggy Allen, Clerk
Rory Salvatierra, Bailiff
April 16, 1993, 09:00
ITEM 1 CV364247 EMILY WEBER, ET AL VS. FAR NORTHERN COORDINATING COUNCIL, ET
Nature of Proceeding: MTN FOR RECONSIDERATION OF ORDER
Filed By: ROSENBERG, DAVID ATTORNEY PLAINTIFF
Continued to 04/23/93
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ITEM 2 CV368889 NATIONAL ASSOC OF INDEPENDENT INSURERS VS. JOHN GARAMENDI
Nature of Proceeding: SUMMARY JUDGMENT
Filed By: COHEN, JONATHAN D.
Continued to 04/20/93
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ITEM 3 CV369943 GLENE B. ANDERSON VS. BANK OF CALIFORNIA
Nature of Proceeding: CLAIM OF EXEMPTION
Filed By: O'CONNOR, MARK
Dropped.
Department 27
April 16, 1993
Page 2
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ITEM 4 CV370253 TRUMP PLAZA ASSOCIATES, ET AL VS. VINCENT PORTER
Nature of Proceeding: ORD OF EXAM/JUDGMENT DEBTOR
Filed By: HOUGHTON, M. BROOKS Attorney for Petitioner
Appearance Required.
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ITEM 5 CV519351 WILLIAM RUSHTON, ET AL VS. FRANKLIN J. HICKEY, ET AL
Nature of Proceeding: SUMMARY JUDGMENT/JOINDER
Filed By: FRIEDMAN, DANIEL J.
Summary adjudication: The issues are not properly stated as in the local
rules but will be adjudicated to the extent there is substantial
complaince as follows:
Issue 1 - Causes of action 6, 7, 21, 22 have no merit: These are
challenged on the basis of the statute of limitations. The amended
complaint was not filed until 11-5-91. The specific violations of the
corporations code involve offering or selling a franchise when one is
not authorized to do so. The original complaint contained no charging
allegations as to unauthorized offering or selling of franchises. It is
undisputed that the offer was made prior to October 31, 1990 and that
plaintiffs had knowledge of the fact that movants were unauthorized
prior to that time. (Fact 1) The amended complaint does not relate back.
Granted. (All defendants)
Issue 2 - All causes of action involving movant (Weider Franchising,
Inc.) have no merit: These are challenged on the ground this corporation
did not exist until November 29, 1990. Plaintiff has not shown any basis
for holding this corporation liable for acts of other entites prior to
its formation. CCP 437c(n)(2). Granted.
Issue 3 - This is not properly stated for adjudication. It also attempts
to adjudicate causes of action on legal theories.
Department 27
April 16, 1993
Page 3
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Issue 4 - See ruling on 3.
Issue 5 - Cause of action 5 has no merit (Conversion): Granted. A
contract dispute whereby one requests the return of consideration and it
is denied does not become a conversion cause of action. This is not what
Mr. Witkin had in mind in Witkin, SUMMARY OF CALIFORNIA LAW, TORTS (9Tth
ed), 622. (All defendants except Hayes and Priest)
Issue 6 - Causes of action 1, 4 are without merit (Misrepresentation).
Denied. The plaintiff alleges a joint venture and misrepresentations
directed to the partners (Houle and Drexler) are actionable by all
partners. Denied. Subsequent tortious conduct by others has no effect on
this.
Evidence objections of defendant: The evidence objected to was not
utilized in the court's ruling.
Summary judgment: Denied (except Weider Franchising, Inc.) The court
notes that movant did not provide any facts as to the individual
defendants.
Joinder of Hayes and Priest: Denied as untimely.
The prevailing party is directed to prepare an order for the court's
signature pursuant to CCP 437c(g). TERA PHARMACEUTICALS v. SUPERIOR
COURT(1985) 170 Cal.App.3d 530,
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ITEM 6 CV520673 LOIS MAGUIRE VS. EUCALYPTUS TREE LODGE BOARD AND CARE
Nature of Proceeding: MOTION TO COMPEL DEPOSITION
Filed By: HITMAN, MARK
Denied. The relevance of the medical records goes to the knowledge of
the defendant as to the condition of Mr. Beltran. This ruling applies
only to this case.
Joinder of Eucalyptus Tree Lodge: Denied as untimely.
Department 27
April 16, 1993
Page 4
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ITEM 7 CV523651 LINDA L. PERA VS. SECURITY PACIFIC NATIONAL BANK, ET AL
Nature of Proceeding: SUMMARY JUDGMENT
Filed By: GILLETTE, PATRICIA K.
There are no triable issues of material fact. The defendant had good
cause for the termination based upon the plaintiff's failure to properly
handle the Love Chevrolet account. The single incident of the request to
have a drink in Mr. Larsen's room is not sufficient to show an improper
basis for the termination and is not related to the decision to
terminate plaintiff. Plaintiff's declaration is inconsistent with her
deposition and is disregarded as to other instances of sexual
harassment.
Granted.
The prevailing party is directed to prepare an order for the court's
signature pursuant to CCP 437c(g). TERA PHARMACEUTICALS v. SUPERIOR
COURT(1985) 170 Cal.App.3d 530,
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ITEM 8 CV524053 FRANCES S. POWERS VS. JAMES E. SHERIFF, ET AL.,
Nature of Proceeding: ORD TO APPEAR FOR EXAM.(2)
Filed By: MOORE, JOHN M.
There is no proof of service as to Ms. Swift, the only examination
remaining on calendar.
Appearance Required.
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ITEM 9 CV525019 JOHN BAKOS, M.D. VS ROSEVILLE COMMUNITY HOSPITAL, ET AL
Nature of Proceeding: DEFAULT HEARING
Filed By: MARCINIAK, CASEY C.
Dropped.
Department 27
April 16, 1993
Page 5
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ITEM 10 CV525973 CRYSTAL CREAM & BUTTER CO. VS. FIELLEN-VOLLMAN, ET AL
Nature of Proceeding: SUMMARY JUDGMENT
Filed By: ROBINSON, WILLIAM E.
The court disregards the declaration as being inconsistent with the
deposition of defendant. There are no disputed material facts. Granted.
The prevailing party is directed to prepare an order for the court's
signature pursuant to CCP 437c(g). TERA PHARMACEUTICALS v. SUPERIOR
COURT(1985) 170 Cal.App.3d 530,
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ITEM 11 CV527949 GUARANTEED PRODUCTS CORP. ET AL VS. PATRICK CONST. ET AL
Nature of Proceeding: MOTION TO WITHDRAW ATTY OF RECORD
Filed By: KUSNIR, J. MICHAEL
There being no opposition, the requested relief is granted.
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ITEM 12 CV528821 EASTAR GROUP, INC. VS. ALLEN BENSEN, ET AL.
Nature of Proceeding: MOTION TO COMPEL (2)
Filed By: OCHRACH, JEFFREY H.
Plaintiff's motion to compel deposition of defendants:
Granted. No opposition. Sanctions: $534 from defendants to plaintiff in
10 days.
Defendants' motion to compel deposition of Wang:
Department 27
April 16, 1993
Page 6
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Questions 1 (irrelevant) and 2 (Irrelevant): Granted. The new objections
now claims are without merit as well. Assuming facts not in evidence is
not a valid objection. WEST PICO FURNITURE CO. V. SUPERIOR COURT (1961)
56 Cal.2d 407. Instructing not to answer is also not proper.
Question 3 (irrelevant): Granted.
Question 4, 5 (irrelevant): Granted
Question 6 (legal conclusion): Granted.
The continued deposition was impropery denied by requesting a quid pro
quo. The deposition shall be resumed within 5 days.
Sanctions: $1300 from Mr. Samuel to movant in 10 days.
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ITEM 13 CV529637 VALERIA LEYVA VS. SACRAMENTO CITY UNIFIED SCH. DIST., ET AL
Nature of Proceeding: SUMMARY JUDGMENT
Filed By: NEUNZIG, BRADLEY E.
The testimony of Ms. Alley is sufficient to prove mailing the notice of
rejection. Mr. Rosenblum's testimony that "At no time prior to September
16, 1992 did my office receive written notice..." is not sufficient to
raise a triable issue of material fact. Nor is a subsequent conversation
of the adjuster about the facts of the case sufficient to raise an
inference that the claim had not been rejected. The testimony of Mr.
Rosenblum that the inquiries were in anticipation of setting reserves is
not inconsistent with anticipating a lawsuit. Also, Mr. Rosenblum's
testimony that mentions settlement is not specific as to who received
the phone call and does not show personal knowledge of these facts nor
is settlement reasonably indicative of rejection. Mr. Rosenblum should
have inquired as to the rejection. See California Continuing Education
of the Bar, CALIFORNIA GOVERNMENT TORT LIABILITY PRACTICE (3d Edition),
6:120.
Granted.
Department 27
April 16, 1993
Page 7
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The prevailing party is directed to prepare an order for the court's
signature pursuant to CCP 437c(g). TERA PHARMACEUTICALS v. SUPERIOR
COURT(1985) 170 Cal.App.3d 530,
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