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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 Jody Patel 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
T. West, Clerk
V. Carroll, Bailiff
Wednesday, November 01, 2006, 2:00 PM
Item 1 02AS05735 AILEEN LOVESEE, ET AL VS. RICKY MARTINEZ, ET AL
Nature of Proceeding: Default Hearing Walter Neep
Filed By: Ennis, Scott B.
Request for Default Judgment is denied.
The statement of damages must be personally served or otherwise served in the
manner of service of summons. Here, the statement of damages was mailed to
defendant to his last known address. This is not sufficient notice of the damages being
sought since the document was not served in the manner required by law. Plotitsa v
Superior Court (1983) 140 Cal.App.3d 755, 759.
Item 2 02AS05735 AILEEN LOVESEE, ET AL VS. RICKY MARTINEZ, ET AL
Nature of Proceeding: Default Hearing Ailene Lovesee
Filed By: Ennis, Scott B.
Request for Default Judgment is denied.
The statement of damages must be personally served or otherwise served in the
manner of service of summons. Here, the statement of damages was mailed to
defendant to his last known address. This is not sufficient notice of the damages being
sought since the document was not served in the manner required by law. Plotitsa v
Superior Court (1983) 140 Cal.App.3d 755, 759.
The minute order is effective immediately. No formal order pursuant to CRC
Rule 391 or further notice is required.
Item 3 03AS00933 TRUCK INSURANCE EXCHANGE, ET AL VS. SPHERE DRAKE INS
CO,ETAL
Nature of Proceeding: Miscellaneous Motion
Nature of Proceeding: Miscellaneous Motion
Filed By:
The Court will not sign the proposed Case Management Order.
The Court will not appoint Bruce Edwards in any capacity for the reason that
Inscorp and other parties have always objected to his appointment. Further he is
located in San Francisco.
The Court's minute order did not address appointment of a discovery referee
and none will be appointed at this time. The Court did direct the parties to meet and
confer on a mediator who shall be located in Sacramento. The formal order does not
identify a mediator. If the parties cannot agree on a mediator, after meeting and
conferring concerning the nomination procedure, they shall submit prospective lists to
the court and the Court will choose the mediator. If the parties cannot agree on the
method of putting together a list of potential mediators to suggest to the court, each
party may nominate no more than two mediators. The parties shall provide such
nominees to the Court no later than November 10, 2006, from which the Court will
select the mediator.
This minute order is effective immediately and no formal order is required.
Item 4 03AS02717 JAMES LONGORIA, ET AL VS. BRANDON KUANG
Nature of Proceeding: Motion To Compel Deposition Testimony and Production of Documents
Filed By: Shergill, Amar
Plaintiff's Motion to Compel Deposition Testimony and Production of Documents
is ruled on as follows:
Plaintiff noticed the deposition of defendant's retained medical expert Laszlo
Tamas. Dr. Tamas employs Benchmark Medical Consultants as a third party
administrator that provides examination facilities, report transcription and other
services. The deposition notice sought production of 45 categories of documents. The
expert objected to categories 11-16, and 18-45. Although the notice of motion seeks
to compel both testimony and documents, the 335 statement only contains disputes as
to documents. The declaration of plaintiff's counsel states that the deponent refused to
respond to questions about the categories objected to, but it is not clear what questions
he did respond to. Therefore, given the deficiency in the 335 statement, no further
deposition testimony is being ordered except as specifically noted below. The trial date
is November 6, 2006.
Plaintiff contends that the broad document request is relevant the expert's bias.
Some of the requests seek documents going back 10 years including any documents
"reflecting" all clients, trials, depositions, advertisements within that time period. The
court finds that many of the disputed document categories are overbroad given that
they are only tangentially related to the case (issue of expert's bias). Moreover, the
records implicate the deponent's privacy rights and in balancing the need for plaintiff to
show bias and the expert's privacy rights, the balance tips in favor of the privacy rights.
The cases relied on by plaintiff, Allen v Superior Court (1984) 151 Cal.App. 3d 447,
and Stony Brook I Homeowners Ass'n (2000) 84 Cal.App.4th 691, do not support the
and Stony Brook I Homeowners Ass'n (2000) 84 Cal.App.4th 691, do not support the
broad document discovery being sought. Rather, those cases hold that detailed
records of the expert's prior expert testimony and current income are not to be
produced, but rather the information can be obtained by oral testimony at the
deposition. The fact that the records may be in the possession of Benchmark rather
than the expert does not establish good cause for their production.
The defendant has attached documents to the attorney's declaration regarding
the ruling in the Sutter County case, however that ruling is not binding on this court and
the court is reaching its own determination as to whether any documents in the
disputed categories should be produced.
Denied as to Requests Nos. 11, 12, 13, 15, 16, 18, 19, 20, 21, 22, 23, 24, 25,
26, 27, 36, 39, 40, 42, 43, and 44.
Granted as to Requests Nos. 14 and 28.
As to the "lists" that Benchmark does not possess, the fact that the "lists" do not
exist do not preclude plaintiff from asking the expert questions at a deposition to seek
the same information. Plaintiff may redepose the expert who is required to respond to
questions related to the following document categories, limited to the past 4 years:
Nos. 29, 30, 31, 32, 33, 34, 35, 37, 38, 41, and 45. There is no trade secret
implication in these records and there is no burden in answering the questions.
Sanctions are denied since each side prevailed in part.
The parties are to meet and confer to set up a date time and place for the
depostion of the expert on the areas where the motion was granted.
The minute order is effective immediately. No formal order pursuant to CRC
Rule 391 or further notice is required.
Item 5 04AS04355 PRINCIPAL SOLUTIONS, INC. VS. KEVIN HICKS, ET AL
Nature of Proceeding: Motion To File Amended Complaint
Filed By: Mikacich, James L.
Judge McMaster discloses that approximately ten years ago, attorney James
Mikacich represented Judge McMaster in his capacity as an administrator of an estate.
Plaintiff's Motion to File 2nd Amended Complaint is granted.
Plaintiff seeks to amend the complaint to bring in new defendents and to add
causes of action based on the discovery that the subject property was at some time
conveyed to the added defendants and was also refinanced a number of times. The
new defendants and new causes of action are all related to plaintiff's alleged initial
investment of over $54,000 to save the property from foreclosure. Plaintiff contends,
and defendant concedes in the opposition, that all causes of action are based on the
and defendant concedes in the opposition, that all causes of action are based on the
same facts as the original causes of action. Plaintiff's counsel recently substituted into
the case in August after Defendant Hick's default was set aside.
Although it appears that plaintiff was less than diligent in not seeking earlier to
amend the compalint since many of the facts have been known for some time, the
court is allowing the amendment because there is no prejudice to the opposing
defendants since the new causes of action are all based on the original facts, and
because the trial date is not even set yet. The trial setting conference is not until
January and therefore the trial date, at the earliest, would be in March of 2007.
Defendant is mistaken that in contending that the law does "not allow new and
distinct causes of action." Defendant is also incorrect in arguing that an amendment
to a complaint requires a showing of mistake, surprise or excusable neglect.
Defendant is misreading CCP 473(b), which applies only to setting aside defaults, not
amending complaints. Amendment of pleadings is governed by CCP 473(a).
Here, defendants are not prejudiced by this amendment and the policy of liberal
amendment of the pleadings prevails. Most of the amendments relate to the defaulted
defendant Kevin Hicks, whose default was taken early on in the case and was not set
aside until June of 2006. It was reasonable to not seek amendment of the complaint
while the default was in place since that would have opened up the default. Once the
default was set aside and both sides obtained new counsel, it was reasonable to
review the file and amend the complaint accordingly. Any statute of limitations defense
as to the new defendants may be made by a demurrer or motion for judgment on the
pleadings.
2nd amended complaint to be filed and served on or before November 3, 2006.
Response to be filed and served on or before November 17, 2006.
The minute order is effective immediately. No formal order pursuant to CRC
Rule 391 or further notice is required.
Item 6 05AS03701 ANGELINA ALONZO, ETAL VS. GLADYS ELIJEAN REAL
Nature of Proceeding: Motion To Compel Responses To Supplemental Interrogatories
Filed By: Meshot, Peter A.
Defendant's Motion to Compel Responses to Supplemental Interrogatories and
Supplemental Requests for Production is granted. Compliance to be without
objections on or before November 13, 2006.
Sanctions are denied because the motion was not opposed. Although CRC 341
purports to authorize sanctions if a motion is unopposed, the Court declines to do so,
as the specific statutes governing this discovery (CCP 2030.290(c), 2031.300(c))
authorize sanctions only if the motion was unsuccessfully made or opposed. Any order
imposing sanctions under the CRC must conform to the conditions of one or more of
the statutes authorizing sanctions. Trans-Action Commercial Investors, Ltd. v
Firmaterr Inc. (1997) 60 Cal.App.4th 352, 355. However, repeated conduct of failing to
comply with discovery obligations may lead the Court to find an abuse of the discovery
process and award sanctions on that basis.
The minute order is effective immediately. No formal order pursuant to CRC
Rule 391 or further notice is required.
Item 7 06AS01819 STAN PEREZ VS. CALIFORNIA HIGHWAY PATROL;DWIGHT O HELMICK
Nature of Proceeding: Plaintiff's Pitchess Motion
Filed By: Grace, Patricia J.
This matter is continued on the court's own motion to 11/14/2006 at 02:00PM in
this department.
Item 8 06AS01849 ENEMY TERMITE, INC VS. JEFFREY L. DANIELS ET AL
Nature of Proceeding: Motion To Withdraw Atty of Rec
Filed By: Montague, John D.
Motion to Withdraw as Attorney of Record for plaintiffs is unopposed but is
denied for insufficient notice. The motion was served by mail on October 5, providing
16 court days and 2 calendar days notice. CCP 1005(b) requires 16 court days plus
five calendar days notice if the motion is served by mail. See Barefield v Washington
Mutual Bank (2006) 136 Cal. App. 4th 299, 303.
The minute order is effective immediately. No formal order pursuant to CRC
Rule 391 or further notice is required.
Item 9 06CS01367 IN RE: JEAN GRIFFITHS ET AL.
Nature of Proceeding: Petition For Change Of Name
Filed By: Griffiths, Jean
Petition for Name Change is granted as to petitioner but denied without
prejudice as to the minor since the father of the minor must be personally served with
the petition and the father is not identified in the petition. CCP 1277(a).
Item 10 06CS01371 IN RE: SYLVIA VERA
Nature of Proceeding: Petition For Change Of Name
Filed By: Vera, Sylvia
Petition for Name Change is granted on condition petitioner file a declaration
under penalty of perjury signed by the minor, who is turning 18 on November 30, 2006,
stating that he consents to the name change.
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