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To request limited oral argument on any matter on this calendar, you must call the Court at (916) 874-7848 (Department 54) 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.
Department 54
Superior Court of California
800 Ninth Street, 3rd Floor
Shelleyanne W.L. Chang, Judge
E. Higginbotham, Clerk
V. Carroll, C.A., Bailiff
Thursday, April 13, 2006, 9:00 AM
03AS01668
ARTHUR NEWBY, ET AL VS. SAFEWORKS LLC, ET AL
Nature of Proceeding: Motion to Tax Costs Plaintiffs Jeffrey Davis and Nonie Davis’ motion to tax costs is granted in part and denied in part. Defendants are awarded costs in the amount of $2,132.36.
In ruling on a previous motion to tax an identical cost memorandum in this consolidated matter, the court considered, and denied, defendants’ request for a continuance pursuant to CCP section 473 and CRC rule 870(b)(3). Based on the papers before it, the motion to tax is granted as to items 1a. (except for $238 (answer to Davis complaint) and $311 (answer to Davis cross-complaint)); 4. (except $1,263.66 (Corey Ward deposition) and $319.70 (Zacharia Shaner deposition)); 5(a) and (b); and 8(a)(1).
This minute order is effective immediately. No formal order pursuant to CRC rule 391 or other notice is required.
04AS02135
JESSIE OCHOA VS. TED LOPEZ, ET AL
Nature of Proceeding: Motion To File Amended Complai Plaintiff’s motion for leave to file first amended complaint is denied without Plaintiff seeks leave to amend his complaint, primarily to allege two new causes of action, fraudulent transfer and conspiracy, and to add defendant Debra Lopez as an individual defendant. With respect to the new causes of action, both are premised on the alleged transfer of the business at issue from defendant Ted Lopez to defendant Debra Lopez. Plaintiff relies upon CC section 3439 et seq. The reliance is premature. Under section 3439.01(e), “‘Debtor’ mean a person who is liable on a claim.” No defendant is yet liable. Further, the court notes that civil conspiracy is not a separate cause of action. With respect to other amendments, the court notes that trial is set for April 17, 2006. As plaintiff points out, amendment is permitted at any stage of the proceedings. Plaintiff may request, and the court may allow, amendment during trial.
proceedings. Plaintiff may request, and the court may allow, amendment during trial.
This minute order is effective immediately. No formal order pursuant to CRC rule 391 or other notice is required.
04AS02640
FRANK M. BOOTH, INC., ET AL VS. JEFFREY C. STONE, INC.,ET AL
Nature of Proceeding: Motion To Withdraw Atty of Record The unopposed motion to be relieved as counsel for Urban Retail Partners, LLC, is granted. The court will sign the order submitted, which shall be effective upon filing of a proof of service of the signed order upon the client.
The notice of motion does not provide notice of the court's tentative ruling system as required by Local Rule 3.04(D). Moving counsel is directed to contact the client forthwith and advise the client of Local Rule 3.04 and the court's tentative ruling procedure and the manner of requesting a hearing. Moving counsel is ordered to appear in person or by telephone in the event that the client appears for the hearing without prior request.
04AS03712
CHARLES CAVALIER, ET AL VS. MONICE KWOK, M.D., ET AL
Nature of Proceeding: Summary Judgment (CHW Medical Foundation) Defendant CHWMF Medical Foundation (CHWMF)’s motion for summary judgment, or in the alternative summary adjudication, is denied.
The complaint is for medical negligence and loss of consortium. CHWMF presents the following evidence. CHWMF owns and operates health care clinics, which provide medical services to Sacramento-area residents. It has an agreement with defendant MedClinic of Sacramento (MCS) to provide direct medical care to patients at CHWMF’s clinics. MCS hires, trains and compensates all professional personnel. CHWMF provides non-physician personnel, supplies, equipment and administrative services. MCS contracted with defendant Kwok as a full-time physician. Kwok first examined plaintiff in November 2000. The name “CHW Medical Foundation” does not appear on plaintiff’s history and physical examination. Kwok saw plaintiff again in 2001, 2002 and 2003. There is no reference to “CHW Medical Foundation” on plaintiff’s medical records from those visits. The June 2003 examination did not reveal any symptoms to contraindicate Imitrex. In August 2003, plaintiff had an injection of Imitrex; twelve hours later, he suffered a stroke. CHWMF contends it is entitled to judgment because its relationship with MCS was neither a partnership nor a joint venture and because Kwok was not its employee, agent or even ostensible agent. Alternatively, CHWMF argues that Kwok’s treatment of plaintiff did not fall below the standard of care.
With respect to the issue of Kwok’s care and treatment of plaintiff, there is a disputed material fact. According to Albertson, defendant’s expert, “Dr. Kwok’s treatment of plaintiff Charles Cavalier was entirely appropriate at all times and within treatment of plaintiff Charles Cavalier was entirely appropriate at all times and within the standard of care.” Albertson dec., para. 10. According to Watkins, retained by plaintiff, “the conduct of Dr. Kwok . . . was at the time, and would be today, conduct below the standard of care governing physicians treating migraine headaches.” Watkins dec., para. 24.
Similarly, with respect to the issue of a partnership or joint venture between CHWMF and MCS, there is a disputed material fact. First, it cannot escape observation that the two entities are jointly in the business of providing health care services to patients at clinics owned by CHWMF. CHWMF was “formed for purposes of providing health care services . . . . CHWMF operates a multi-disciplinary clinic.” PSA, para. A. It has entered into agreements “by which it is obligated to provide . . . professional medical services to its patients,” which includes, of course, plaintiff Id. MCS is a “professional medical corporation.” Its business is to “render medical and professional services.” Id., para B. As noted above, the two entities provide complementary services to patients. Each need not control the other’s responsibilities to be a partnership or joint venture. Second, defendant seriously understates CHWMF’s relationship with MCS. The PSA is replete with provisions where CHWMF exercises considerable control over MCS. For example, under the PSA, CHWMF requires MCS physicians to obtain and maintain privileges at specific hospitals, e.g., Mercy General Hospital. Physicians who lose their privileges at those institutions “shall not be permitted to provide services” under the agreement. Id., para. 2.5. Further, MCS must report to CHWMF actions taken in response to CHWMF’s concerns regarding physician competency or disruptive/abusive behavior. Id., para. 2.6. CHWMF also enjoys veto power over the selection of the MCS medical director. Id., para. 6.15.1. Finally, the agreement provides a significant role for CHWMF in the merger of other medical groups with MCS. Id., para. 2.8. Third, even where duties may have been divided, e.g., administrative and medical, they sometimes overlap. For example, although the PSA provides that “all services rendered by [MCS] to CHWMF’s patients shall be billed by CHWMF in the name of CHWMF,” id., para. 6.1, CHWMF’s bill to plaintiff for $101 states that “billing inquires can be emailed to us via our web site medclinicmedgroup.org.” Similarly, the test result (“X-Ray is within normal limits”) sent to plaintiff had “CHWMF Medical Foundation” printed at the top. Based on the admissible evidence before it, the court finds that the issue of whether a partnership of joint venture exists is “a factual question to be determined by the trier of fact from the evidence and inferences to be drawn therefrom.” Filippo Industries, Inc. v. Sun Ins. Co. (1999) 74 Cal.App.4th 1429, 1444. Given that a determination of this issue in favor or plaintiff could result in defendant's liability, the court need not consider the remaining issues raised by the parties.
Defendant’s objections 1 - 4 and 6 are sustained; defendant’s remaining objections are overruled. Defendant’s deposition exhibit does not comply with CRC rule 316(c). Plaintiff’s opposition separate statement does not comply with CRC rule 342(h). Plaintiffs’ counsel shall prepare an order pursuant to CCP section 437c(g) 04AS03712
CHARLES CAVALIER, ET AL VS. MONICE KWOK, M.D., ET AL
Nature of Proceeding: Summary Judgment (Monice Kwok) Defendant Monice Kwok’s motion for summary, or in the alternative summary The complaint is for medical negligence and loss of consortium. Defendant presents evidence that the medication “Imitrex could not have caused [plaintiff Charles Cavalier’s] stroke” and that the “treatment of plaintiff by Dr. Kwok was appropriate and within the standard of care for similar physicians in like circumstances.” Nickles dec. para. 12 and 13. In their opposition, plaintiffs present evidence that “the conduct of Dr. Kwok in continuing to prescribe Imitrex and allowing her patient to take Imitrex . . . was, at the time, and would be today, conduct below the standard of care” and that Imitrex “was a legal cause of the occurrence of [plaintiff’s] stroke.” Watkins dec. para. 26. Defendant did not file reply papers. Plaintiffs' showing is sufficient to demonstrate the existence of a triable issue of material fact.
Plaintiffs' counsel shall prepare an order pursuant to CCP section 437c(g) 04AS03712
CHARLES CAVALIER, ET AL VS. MONICE KWOK, M.D., ET AL
Nature of Proceeding: Summary Judgment (MedClinic) Defendant MedClinic Medical Group’s motion for summary is denied.
The complaint is for medical negligence and loss of consortium. Plaintiffs’ claim against this defendant is derivative of their complaint against defendant Kwok. Defendant presents evidence that the medication “Imitrex did not cause the stroke experience by plaintiff” and “that there was absolutely nothing done by Dr. Kwok which was inappropriate or fell below the standard of care.” Croke dec. para. 14 and 15. In their opposition, plaintiffs present evidence that “the conduct of Dr. Kwok in continuing to prescribe Imitrex and allowing her patient to take Imitrex . . . was, at the time, and would be today, conduct below the standard of care” and that Imitrex “was a legal cause of the occurrence of [plaintiff’s] stroke.” Watkins’ dec. para. 26. Defendant did not file a reply brief. Plaintiffs’ showing is sufficient to demonstrate the existence of a triable issue of material fact.
Plaintiffs’ counsel shall prepare an order pursuant to CCP section 437c(g) 04AS05170
CONSIGNMENT PLUS HOME FURNISHINGS, INC. VS. TABAIE M.
BAHRAM
The matter is continued to 6/13/2006 at 09:00 a.m. in this department.
04AS05256
MAYLIVIA BLUFORD VS. CALIFORNIA DEPT. OF CORRECTIONS, ET AL
04AS05256
MAYLIVIA BLUFORD VS. CALIFORNIA DEPT. OF CORRECTIONS, ET AL
Nature of Proceeding: Motion For Reconsideration Plaintiff’s motion for reconsideration is denied. Plaintiff fails to demonstrate “new or different facts, circumstances, or law.” CCP 1008(a). None of the exhibits she attached to this motion is less than two years old. Similarly, all of plaintiff’s cases were decided before 2005. Thus, the cases and facts she presents must have been available to her at the time of the court’s prior ruling. In any event, plaintiff fails to submit a declaration to the contrary. “To merit reconsideration, a party must give a satisfactory reason why it was unable to present its ‘new’ evidence at the original hearing.” McPherson v. City of Manhattan Beach (2000) 78 Cal.App.4th 1252, 1265. In effect, plaintiff submits only “other” facts and law and “new or different” argument. Were the court to grant a motion for reconsideration on such a showing, the parties could easily engage in an endless series of motions preventing any action from ever proceeding beyond the pleading stage.
The court will not hear oral argument.
This minute order is effective immediately. No formal order pursuant to CRC rule 391 or other notice is required.
05AS00202
TINESHA TURNER, ET AL VS. SUNNY'S CABARET, INC., ET AL
Appearance required. Doe defendants must be dismissed prior to entry of 05AS01758
SOPHIA HIGHTOWER VS. GENERAL CONFERENCE OF THE 7TH-DAY,
ETAL
Defendant Stephen Lewis' demurrer to the first cause of action of the second amended complaint, fraud, is sustained without leave to amend for failure to state facts sufficient to constitute a cause of action. Plaintiff alleges in paragraph 13 that between December 2000 and April 2001 defendant, through an agent named John Cofer, made certain representations regarding work during her summer vacation from school, e.g., that defendant would “take good care of her” and “teach her techniques for natural healing.” In paragraph 14, plaintiff alleges that in reliance on those representations, she moved from Sacramento to Palmdale in May 2001. Plaintiff further alleges that the representations proved untrue. For example, in the summer of 2001 she did not receive medical care when she was ill. However, given that the representations, as alleged, concerned the summer of 2001, plaintiff must have known their falsity by the end of that summer. She summer of 2001, plaintiff must have known their falsity by the end of that summer. She reached her 18th birthday on September 1, 2001. Her cause of action arose at that time, or at least by the end of that summer. Consequently, she had three years from then to file an action for fraud. Yet she did not file her complaint until April 21, 2005. Any claim arising from representations made between December 2000 and April 2001 is time-barred.
In paragraph 15, plaintiff alleges defendant made misrepresentations between May 2001 and August 2003. It is unclear, however, how plaintiff relied on these representations. She could not have relied on misrepresentations made after May 2001 to move to Palmdale, although she may have relied on them to not leave Palmdale or visit her family. Assuming that these representations are not time-barred, they remain problematic. First, misrepresentations a, b, c, f, g, and i are opinion and not actionable. Misrepresentation d, that if she did as she was told she would receive a car, may be a promise made without intent to perform, but it is hopelessly vague. Misrepresentations e and h, that people who left Palmdale suffered drastic consequences and that plaintiff couldn’t leave Palmdale without defendant's permission, may be provable, and therefore not opinion, but, they, too, are inadequately plead. Finally, as stated previously, plaintiff’s damages are highly conjectural. In an action for the tort of fraud, a plaintiff’s damages must be pecuniary. In paragraph 22, plaintiff primarily alleges emotional distress, but adds that she could not earn wages between May 2001 and November 2003. However, plaintiff alleges in paragraph 8 that “she planned to go to college.” In fact, she had already begun university classes in 2000. Plaintiff’s allegation that she “could have worked part time” while going to college is pure speculation as plaintiff does not allege elsewhere that she had ever been employed.
Defendant may file and serve their answer no later than April 21, 2006.
This minute order is effective immediately. No formal order pursuant to CRC rule 391 or other notice is required.
05AS03786
ELIZABETH WANDA GALLEGOS VS. SUTTER HEALTH
Nature of Proceeding: Motion To File Amended Complaint Plaintiff’s motion for order granting leave to amend complaint, which is unopposed, is granted. Plaintiff may file and serve the second amended complaint attached as exhibit A no later than April 24, 2006.
This minute order is effective immediately. No formal order pursuant to CRC rule 391 or other notice is required.
The notice of motion does not provide correct notice of the court's tentative ruling system as required by Local Rule 3.04(D). Moving counsel is directed to contact opposing counsel forthwith and advise them of Local Rule 3.04 and the court's tentative ruling procedure and the manner of requesting a hearing. Moving counsel is ordered to appear in person or by telephone in the event that opposing counsel appears for the hearing without prior request.
appears for the hearing without prior request.
05AS05696
CHRISTOPHER ANDERSON VS DEBRA LEWIS
Defendant Debra Lewis’ demurrer to the complaint, which is unopposed, is sustained with leave to amend for failure to state facts sufficient to constitute a cause of action.
Plaintiff may file and serve an amended complaint no later than April 24, 2006. Defendant may file and serve a response no later than May 6, 2006. If defendant demurs or moves to strike, a copy of the amended pleading must be included with the moving papers.
This minute order is effective immediately. No formal order pursuant to CRC rule 391 or other notice is required.
05AS05696
CHRISTOPHER ANDERSON VS DEBRA LEWIS
Defendant’s motion to strike is dropped as moot. The court sustained defendant’s accompanying demurrer to each cause of action.
06AS00252
DICK EMARD ELECTRIC, INC. ET AL VS. TEMPLETON DEVEL INC ETAL
Defendant’s motion to dismiss for inconvenient forum is denied. The agreement between plaintiff and defendant Templeton requires that any dispute “be submitted to mediation administered by the [AAA] . . . before resorting to Arbitration or litigation.” Para. 11.3. Plaintiff contends it attempted to mediate the matter, but defendant declined. Therefore, it may file this action. Defendant responds that plaintiff required the mediation be held in Sacramento in violation of the agreement, which provides that mediation shall be held in Las Vegas, Nevada. Para. 11.3.3. Plaintiff counters that under CCP section 410.42, any “provision which purports to require any dispute between the parties to be . . . determined outside this state” is void and unenforceable. Finally, defendant argues that section 410.42 is pre-empted by the FAA. Plaintiff has the better argument.
At issue initially is mediation, not arbitration. So, even if the FAA would trump section 410.42, it would not apply to mediation. Further, defendant’s failure to respond section 410.42, it would not apply to mediation. Further, defendant’s failure to respond to plaintiff’s mediation request, as required by paragraph 11.3.1, means that the matter cannot go to arbitration. “Mediation is an express condition precedent to the hearing of any arbitration demanded under this Article.” Id. Thus, having failed to mediate neither party may request arbitration. Finally, the arbitration provision is unconscionable on its face. First, it is printed in miniscule type, without an appropriate heading. It is buried in paragraph 11.3, on pages 25-26 of the agreement. There is no table of contents or other indication earlier in the document noticing the arbitration requirement. Second, defendant alone has the choice of whether to arbitrate or litigate. The arbitration provision is unenforceable.
Defendant cited numerous out-of-state cases, but did not comply with CRC rule 313(b). The court did not consider plaintiff’s “sur-reply.” There is no statutory provision for such a filing.
This minute order is effective immediately. No formal order pursuant to CRC rule 391 or other notice is required.
04AM07606
BENEFICIAL CALIFORNIA, INC. VS. GREGG W. DAVIS, ET AL
The claim of exemption is denied. The Sheriff is directed to garnish $200 per month from the judgment debtor’s earnings and return to the judgment debtor any amount it is holding greater than $400.
05AM02470
ALLIANCE TITLE COMPANY VS. PROVIDENCE HOMES, INC., ET AL
Plaintiff’s motion to compel deposition, which is unopposed, is granted. Service of the motion on defendant Wheeler was sufficient. Defendant Leo Wheeler shall appear and respond to questions at a deposition to be noticed by plaintiff in compliance with CCP section 2025.220 and 2025.270.
Plaintiff’s request for a monetary sanction is granted. Defendant Leo Wheeler shall pay to plaintiff $687.10 ($495.00 + $152.10 + $40.00).
This minute order is effective immediately. No formal order pursuant to CRC rule 391 or other notice is required.
06CS00322
IN RE : LIMMIE LEVON WOMACK
Nature of Proceeding: Petition For Change Of Name The petition is granted, provided proof of publication is filed in Department 54 by

Source: http://www.autoaccident.com/filings/06/d54-2006-0413-0900.pdf