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 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. Item 5 07AS01781 MARCO AMBROSELLI VS. VLADE DIVAC. ANA DIVAC. ET AL 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. Item 6 07AS02927 DONALD GENE PHILLIPS VS. STATE OF CA. ET AL 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. Item 7 07AS03667 REUBEN ANUMENE VS. WESTERN DENTAL;RELIANT RECOVERY SVCS INC 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. Item 8 07AS03667 REUBEN ANUMENE VS. WESTERN DENTAL;RELIANT RECOVERY SVCS INC Nature of Proceeding: Motion to Strike Filed By: Ramazzini, Stephen L. See ruling in Item 7. Item 9 07AS04633 CITY OF SAC VS. JACKIE BLAIR, NICHOLAS BROWN, ET AL Item 9 07AS04633 CITY OF SAC VS. JACKIE BLAIR, NICHOLAS BROWN, ET AL 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 Pickens. 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 dispositive. 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 (b)(3). 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. Item 11 06AS04333 MIKE CASTOR. ET AL VS. GRUTCHFIELD CONSTRUCTION CO. 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. Item 12 07AS00837 MICHAEL HUTNICK ET AL VS. ALLIED INSURANCE ET AL Nature of Proceeding: Motion to Enforce Confidentiality Agreement Filed By: Bozarth, Ross Plaintiff’s Motion to Enforce Confidentiality Agreement is granted, as set forth below. 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. Item 13 07AS03201 PROGRESSIVE MARATHON VS. COMMERICAL UNDERWRITERS. ET AL 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 limits. 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. Item 14 07AS03417 GARY KNUTSON VS. LINDA L PRICE. HOME & LOANS. INC. ET AL 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 overruled. 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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