NOTICE To request limited oral argument on any matter on - PDF - PDF by ramhood15


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 court day before this hearing and advise opposing counsel. If no call is
made, the tentative ruling becomes the order of the court. Local Rule 3.04.

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 amounts donated is under the custody of court executive officer Dennis Jones and can be
reviewed at room 611, sixth floor, courthouse, 720 Ninth Street.

                                              Department 53
                                        Superior Court of California
                                         800 Ninth Street, 3rd Floor
                                       LOREN E. MCMASTER, Judge
                                             Terri West, Clerk
                                     D. Calmes V, /V. Carroll, CA, Bailiff

                                   Monday, November 26, 2007, 2:00 PM

Item 1      02AS06419         BUNNIE QUINT VS. ZLYAD MUMEN
            Nature of Proceeding: Motion To Strike/Tax Costs
            Filed By:   Wiesner, Fred G.

                   Respondent Farmers Insurance Exchange's Motion to Strike and Tax Costs
            related to the petition to confirm arbitration award is unopposed but is denied without
            prejudice since it was served by mail only 16 court days before the hearing. CCP 1005
            (b) requires 16 court days plus 5 calendar days for mailing. See Barefield v
            Washington Mutual Bank (2006) 136 Cal. App. 4th 299, 303.

                    If respondent submits in Department 53 before the hearing a declaration from
            plaintiff waiving the notice defect the court will grant the motion as unopposed.

                  The minute order is effective immediately. No formal order pursuant to CRC
            Rule 3.1312 or further notice is required.

Item 2      02AS06419         BUNNIE QUINT VS. ZLYAD MUMEN
            Nature of Proceeding: Petition To Confirm Arb Award
            Filed By:   Clough, William A.

                   Petition to Confirm Arbitration Award is unopposed and is granted.

                   Petitioner to submit a proposed judgment pursuant to CRC 3.1312.

Item 3      06AS00791         LAWRENCE J TODD VS. PAULINE S TRUJILLO
            Nature of Proceeding: Motion to Compel 1. Answers to Supplemental Interrogatories 2.
            Filed By:   Bonotto, Phillip R.

            This matter is dropped from calendar.
Item 4   06AS04877         KATELYNN R OLSON VS. DWAYNE L OLSON. ET AL.
         Nature of Proceeding: Motion for Summary Adjudication
         Filed By:   Carrieri, Jamie

         This matter is continued to 11/30/2007 at 02:00PM in this department so that the Court
         has sufficient time to read the Reply papers.

         Nature of Proceeding: Motion for Summary Judgment/Adjudication
         Filed By:   Ostwald, Mitchell S.

                Defendant L'Image Boutique's Motion for Summary Adjudication of certain
         claims of damages is denied.

               Defendant's Evidentiary Objections are overruled. The format does not comply
         with CRC 3.1354 The objections are irrelevant to the procedural defects in the motion.

                 Plaintiff's complaint alleges causes of action for False Advertising and Unfair
         Competition arising out of his purchase of allegedly counterfeit designer goods sold by
         L'Image Boutique, allegedly owned by Vlade and Ana Divac. Plaintiff alleges Vlade
         and Ana Divac created the false image of quality and exclusivity at their Pavilions
         Shopping Center Store, but that they actually bought fake goods from a disreputable
         Los Angeles dealer and sold them as genuine in their boutique for as much as $900.
         Plaintiff seeks compensatory damages of $5,000,000, punitive damages, emotional
         distress damages, and attorneys fees.

               Subsequently, L'Image filed a "cross-complaint in interpleader" in which it
         deposited what it contends to be the amount in controversy, $1,635.65. Cross-
         complainant never made a motion to dismiss as a purported disinterested stakeholder
         and has not been dismissed from the action. Based on the allegations of the
         Complaint, L'Image is not a disinterested stakeholder. The Court denies the request in
         the Reply to file an Amended Complaint in interpleader.

                 L'Image seeks "adjudication" of plaintiff's claims for attorneys fees,
         compensatory damages, and emotional distress damages. L'Image contends that
         restitutionary damages are no longer at issue since it deposited some money with the
         clerk. Image has submitted a declaration in which the sales person states she sold to
         plaintiff a Fendi wallet, a Gucci wallet and a Fendi Handbag to plaintiff for $1,635.65.
         (Declaration of Orbovic) By depositing that amount in the puported "interpleader"
         L'Image contends all claims for damages against it have been resolved, because the
         only damages plaintiff is entitled to is restitution.

                 In opposition, plaintiff contends his claims are filed on his behalf as well as on
         behalf of other customers who have purchased counterfeit goods from L'Image.
         Plaintiff seeks amendment of the complaint to allege a class action and a claim for
         fraud, based on defendants' representation that the goods are genuine. Plaintiff has
         submitted evidence that the amount in controversy is more than $1,635.65 since he
         spent more than that on the goods. The Reply Declaration of Orbovic states that
         plaintiff spent the higher amount set forth in his declaration. However, even it this is
         undisputed, it does not entitled L'Image to summary adjudication because they have
         not established that plaintiff has no cause of action for false advertising or unfair
         business practices.

                The motion is denied on the procedural ground that the motion does not
         dispose of a cause of action or a claim for punitive damages. The only claims for
         damages that can be adjudicated under CCP 437c(f) are claims for punitive damages.
         CCP 437c(f)(1). There is no authority for the requested relief to adjudicate only the
         claims for attorneys fees, emotional distress damages and compensatory damages.

               Plaintiff may make a motion to amend under CCP 473, CRC 3.1324 to amend
         the complaint.

               The prevailing party is directed to prepare a formal order complying with C.C.P.
         §437c(g) and C.R.C. Rule 3.1312.

         Nature of Proceeding: Application for Preliminary Injunction
         Filed By:   Phillips, Donald Gene

               Dropped from calendar. The defendants' motion for judgment on the pleadings
         was granted October 25, 2007.

         Nature of Proceeding: Demurrer
         Filed By:   Ramazzini, Stephen L.

                The demurrer and motion to strike are dropped from calendar.

                The Court's computer system reflects that a default was entered against moving
         party Western Dental on October 15. Such default must be set aside before the Court
         can take any action in this case.

               The minute order is effective immediately. No formal order pursuant to CRC
         Rule 3.1312 or further notice is required.

         Nature of Proceeding: Motion to Strike
         Filed By:   Ramazzini, Stephen L.

                See ruling in Item 7.

         Nature of Proceeding: Preliminary Injunction
         Filed By:   Fry, Michael A.

                Plaintiff City of Sacramento’s Request for Preliminary Injunction is granted.

               Plaintiff City’s Complaint against 30 individually named defendants is for
         abatement of public nuisance and preliminary and permanent injunction.

                The defendants are alleged to have created a public nuisance in McClatchy
         Park and the designated surrounding area in Oak Park by engaging in the sale of
         controlled substances and/or other drugs, creating loud noise, loitering, creating traffic
         hazards by flagging down cars, public fighting, littering, including alcoholic beverage
         containers and hypodermic needles.

                The conduct of defendants is alleged to have intimidated the neighbors,
         disturbed their peace and tranquility and right to enjoy McClatchy Park.

               Plaintiff requests a Preliminary Injunction against 30 individually named
         defendants, and their agents, prohibiting the defendants from specified conduct in the
         Designated Area within 500 feet of McClatchy Park.

                The Court has received proof of service of the summons, complaint and motion
         papers as to 24 of the named defendants. No proof of service has been provided for
         Jackie Blair, Mark Dunn, William Dupont, Kristie Risso, Flemon Richmond or Dwanna

                In determining whether to issue a preliminary injunction, the trial court
         considers: (1) the likelihood that the moving party will prevail on the merits and (2) the
         interim harm to the respective parties if an injunction is granted or denied. The moving
         party must prevail on both factors to obtain an injunction. Sahlolbei v. Providence
         Healthcare, Inc. (2003) 112 Cal. App. 4th 1137, 1145.

                 Civil Code § 3479 defines a public nuisance as “Anything which is injurious to
         health, including, but not limited to, the illegal sale of controlled substances, or is
         indecent or offensive to the senses, or an obstruction to the free use of property, so as
         to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs
         the free passage or use, in the customary manner, of any navigable lake, or river, bay,
         stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.”
         A public nuisance may be abated by any public body or officer authorized thereto by
         law. Civil Code § 3494.

               The City contends that the conduct of defendants, as described in the
         declarations of the police officers and local residents, including sale of controlled
         substances, loitering, prostitution, fighting and theft, constitutes a public nuisance. The
         nuisance created by defendants attracts others to the park to acquire illegal drugs or
         engage in criminal acts.

                This conduct creates a sense of fear and apprehension among the neighbors,
         who do not wish to allow their children to use the park and are themselves unable to
         enjoy its benefits.
        An injunction may be granted where the restraint is necessary to prevent a
multiplicity of judicial proceedings. Code Civ Proc § 526(a)(6). Here, defendants
conduct is repetitive, and absent an injunction a multiplicity of suits is necessary to
prevent defendants from engaging in unlawful actions.

       Declarations of residents and workers in the neighborhood have been provided
in support, together with the declaration of police officer and conviction records for 18
of the named defendants.

       In balancing the equities, the defendants’ loss of use of the benefits of the park
is outweighed by the fact that the use of those convicted of crimes, including illegal
drug sales, constitutes a nuisance, which precludes all other citizens from lawful
enjoyment of the park amenities.

       A single appearance has been filed in opposition by Defrantze Noel, on behalf
of himself and purportedly on behalf of Kristie Risso. Noel may not appear on behalf
of co-defendant Risso, as Noel is not an attorney and Risso has not signed any of the
documentation submitted. The arguments on behalf of Risso are not considered by
the Court. (The Court notes , however, t6hat Ms. Risso has not been served and
hence the injunction does not apply to her at this time.)

       The sole opposition by Noel, contends that he has not yet been criminally
convicted of any of the charges against him. As this is not a criminal case, that is not

       The motion for Preliminary Injunction is granted only as to those of the named
defendants who have been served. Thus, the injunction is granted only as to named
defendants: Sherrill Battreall, Nicholas Brown, Lewis Coston, Julie Debbs, Billy
Duncan, Frederick Forte, Hosea Haymie, Brandon Harmon, Sara Keola, Carl Lucas,
Anthony Dean, Herbert Hale, Crawford Holloway, Yvonne King, Marcellus Smith,
Gwendolyn Stewart aka Emma Price, Donald Stone, James Taylor, Marcell Tolliver,
Christopher Wilson, Willie Woods, and Willie Young.

       The motion is denied as to the remaining defendants: Jackie Blair, Mark Dunn,
William Dupont, Kristie Risso, Flemon Richmond and Dwanna Pickens, as no proof of
service has been provided for them.

        The injunction will not apply to unnamed “agents, representatives, assignees or
all persons acting in concert or participating with on behalf of" the named defendants
as notice and an opportunity to be heard have not been provided to such unnamed
persons. .

          No undertaking is required, as the plaintiff is a public entity. C.C.P. section 529

          The Court will sign the formal order submitted, as modified.
Item 10   07AM06687         DISCOVER BANK VS. BRAD MITCHELL
          Nature of Proceeding: Motion to Dismiss
          Filed By:   Mitchell, Brad A.

                Defendant's Motion to Dismiss, construed as a motion to quash service of
          summons, is denied. Defendant has not met his burden to show that he was not
          properly served with the summons and complaint. The process server's declaration is
          presumptively correct. Defendant's declaration is conclusionary and does not
          overcome the presumptive validity of the process server's declaration.

               Defendant's remedy, if any, is to move to set aside the default and default
          judgment under CCP 473 within 6 months of entry of default and default judgment.

                The minute order is effective immediately. No formal order pursuant to CRC
          Rule 3.1312 or further notice is required.

          Nature of Proceeding: Default Hearing
          Filed By:   Borg, Jason

                  Satisfactory proof having been made the Court will entered judgment in favor of
          plaintiff and against defendant in the principal amount of $25,618.50 and $466.00
          costs, for a total judgment of $26,084.50.

                   Counsel for Plaintiff to prepare the judgment for the Court's signature.

          Nature of Proceeding: Motion to Enforce Confidentiality Agreement
          Filed By:   Bozarth, Ross

                   Plaintiff’s Motion to Enforce Confidentiality Agreement is granted, as set forth

                  Moving party has not complied with the notice periods set forth in Code of Civil
          Procedure section 1005(b), as the moving and supporting papers were not served and
          filed at least 16 court days before the hearing. Monday, Nov. 12, 2007 was a court
          holiday, and therefore only 15 court days’ notice was given.

               Code of Civil Procedure section 1005 requires that the 16 court days be
          computed before counting the five calendar days for service by mail. See, Barefield v.
          Washington Mutual Bank (2006) 136 Cal.App. 4th 299, 303.

                   However, the motion has been opposed on the merits, and it is well settled that
          the appearance of a party and its opposition to the motion on its merits is a waiver of
          any defects or irregularities in the notice of motion. Alliance Bank v. Murray (1984)161
          Cal.App.3d 1, 7, and cases cited therein.

                  The Second Amended Complaint alleges causes of action for breach of
          contract, breach of the covenant of good faith and fair dealing and negligence against
          defendant AMCO insurance co, in connection with flooding of the plaintiff’s home, and
          the alleged failure to promptly pay the full value of the claim and make the necessary
          repairs under the plaintiff’s homeowner’s policy.

                 Plaintiff moves to Strike AMCO’s entire Motion for Summary Judgment, on
          calendar Friday, Dec. 14, 2007, 2007, on the grounds that the Declaration of Norman
          Johnson, submitted in support of that motion, specifically, paragraphs 12, 13 and 14,
          violates the Confidentiality Agreement between the parties, by which the parties
          agreed that all settlement negotiations and offers will be absolutely confidential, not
          communicated to any person or entity not a party to the agreement, and privileged
          from disclosure under Evid. Code 1152.

                Plaintiffs assert that AMCO violated that agreement by the Declaration of
          Norman Johnson, describing a settlement meeting which occurred on April 10, 2007.
          The April 2, 2007, letter from defendant AMCO’s counsel reflects that the
          Confidentiality Agreement specifically applied to the April 10 settlement meeting.

                  In opposition, defendant AMCO asserts that the references in the Johnson Dec.
          only relate to the adjustment of the claim and are innocuous, and thus do not violate
          the Confidentiality Agreement. However, as the adjustment of the claim is a basis for
          the allegations of the complaint, it is not irrelevant to the issues to be determined in
          this action.

                  The Court concurs that paragraphs 12, 13 and 14 of the Declaration of Norman
          Johnson, submitted in support of AMCO’s motion for summary judgment, violates the
          Confidentiality Agreement between the parties. The Court finds that the remedy of
          striking the entire motion for summary judgment is too severe for the violation. The
          Court orders instead that paragraphs 12, 13 and 14 of the Declaration of Norman
          Johnson, are stricken, and will not be considered by the Court in ruling on the motion
          for summary judgment.

                  Prevailing party plaintiff is entitled to a contractual award of attorneys’ fees,
          based on enforcement of the Confidentiality Agreement (Exh. A, para. 7). Reasonable
          attorneys fees in the amount of $2,007.50 (7.3 hrs at $275/hr) together with $40 filing
          fee, for a total of $2,047.50 shall be paid by AMCO to plaintiff’s counsel not later than
          Wed., Dec. 19, 2007.

                 This minute order is effective immediately. No formal order nor further notice is
          required, the tentative ruling providing sufficient notice.

          Nature of Proceeding: Demurrer
          Nature of Proceeding: Demurrer
          Filed By:   Farmer, Craig E.

                Cross-defendant Progressive Marathon Insurance Company's Demurrer to the
          Cross-complaint of Commercial Underwriters Insurance Company/NAS is sustained
          without leave to amend for failure to state a cause of action.

                 The insureds, the Schraders, were involved in an automobile accident that
          gave rise to two superior court actions. Both actions settled before trial. Progressive
          insured the Schraders under a primary policy with limits of $250,000. Cross-
          complainant NAS insured them under an umbrella policy with limits of $1,000,000.
          Progressive and NAS both paid the limits of their policies in settlement of the two
          superior court actions.

                  The Complaint seeks equitable apportionment of defense costs from the excess
          insurer under Insurance Code section 11580.9(g)(1). NAS' cross-complaint seeks
          equitable contribution and equitable subrogation (for both indemnity and defense
          costs). NAS contends that Progressive had multiple opportunities to settle the
          underlying claims within the $250,000 policy limits, and that Progressive negligently
          and unreasonably failed to investigate and settle the Shrader lawsuits within policy

                  The demurrer is sustained for failure to state a cause of action on the ground
          that an excess insurer cannot sue the primary insurer for failure to settle within policy
          limits of the primary insurer's policy absent an excess judgment against the insured.
          RLI Insurance Company v CNA Casualty of California (2006, 2nd Dist, Div.2) 141
          Cal.App.4th 75. The Court agrees with the reasoning set forth in RLI Insurance
          Company v CNA Casualty of California that a judgment in excess of the limits is
          required to state a cause of action for equitable subrogation. The excess insurer is
          subrogated to insured's rights against the primary insurer, and as long as the primary
          insurer was defending the action, the insured has no action for unreasonable refusal to
          settle until an excess judgment has been rendered. The case of Fortman v Safeco
          Insurance Co. (1990, 2nd Dist. Div.1) 141 Cal.App.4th 1394, is not persuasive and the
          Court declines to follow that case for the reasons stated in the 2nd Districts more
          recent opinion in RLI Insurance Company. The Fortman court was following a rule
          generally applicable in equitable contribution cases, not applicable here. See also
          Hamilton v Maryland Casualty Co. (2002) 27 Cal.4th 718 [insured's right to recover
          from the primary insurer hinges upon a judgment in excess of policy limits].

                 Equitable contribution is not a recognized cause of action between a primary
          and excess insurer. Alliance National Indemnity Company v General Star Indemnity
          Company (1999) 72 Cal.App.4th 1063, 1078; Croskey et al, California Practice Guide,
          Insurance Litigation (The Rutter Group 2005) section 8:66.2. That principal only
          applies when co-insurers are sharing the same level of liability.

                The prevailing party shall prepare a formal order and dismissal of the cross-
          complaint for the Court's signature pursuant to C.R.C. 3.1312.

          Nature of Proceeding: Demurrer
          Filed By:   Merrill, C. Christopher
Filed By:   Merrill, C. Christopher

       Plaintiff's Demurrer to the Answer filed by Louis Brown, a self-represented
party, purportedly on behalf of all defendants is ruled on as follows:

       Defendant Louis Brown filed an Answer on October 3, 2007 on his behalf as
well as purportedly on behalf of defendants Linda L. Price, Dorothy Brown, Homes &
Loans, Inc. and Shonkin Group LLC. The Answer of the defendants other than Louis
Brown is improper since he cannot file an Answer on their behalf unless he is a
licensed attorney. B&P Code 6125. Moreover, only a licensed attorney may represent
the business entities. Merco Construction Engineers, Inc. v Municipal Court (1978) 21
Cal.3d 724, 727.

       The demurrer to the Answer of Linda L. Price, Dorothy Brown and the above
business entities is sustained with leave to amend. Defendants are given leave to
amend to file an Answer on their own behalves, and, as to the business entities, to
obtain an attorney to file an Answer on their behalves.

       The plaintiff's request to enter the defaults of defendants is denied.

       The Answer of Louis Brown is not uncertain and the demurrer thereto is

      Amended Answers to be filed by Linda L. Price, Dorothy Brown, Shonkin Group
LLC and Homes & Loans, Inc. on or before January 2, 2008.

      The minute order is effective immediately. No formal order pursuant to CRC
Rule 3.1312 or further notice is required.

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