NOTICE To request limited oral argument on any matter
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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.