LAW AND MOTION PROCEDURES AND TENTATIVE RULINGS

for Department C-14

The Honorable Charles Margines

Law and motion matters are heard every Wednesday at 1:30 P.M. Motion reservation dates are not taken in this department. You may telephone (714)834-3766 to find out if this court will be available on a particular Wednesday. If you prefer to submit on your papers without oral argument, please advise all counsel first and then telephone the courtroom clerk at (714)834-4526. If the matter is submitted and there are no appearances at the hearing by any counsel, the tentative ruling will become the final ruling. If one or more counsel appears and there has been no agreement by all counsel to submit the matter, the court will entertain argument. Unless otherwise ordered, moving party shall give notice of the ruling. If no one has telephoned the clerk to submit and there are no appearances at the hearing, the matter may be taken off calendar.

       Once the tentative ruling is posted on the Internet, the court will not accept any supplemental papers and will not permit any party to take the matter off calendar. Any motion for continuance must be made at the time of the hearing. If counsel appear at the hearing and waive notice of ruling, the time period in the ruling for the doing of an act (e.g. filing an amended complaint) will begin to run immediately.

October 8, 2008

#	Case Name	Tentative
1.	Ahmad vs. BLB Enterprises	1) Motion to sever cross-complaint from complaint DENIED. This is not a close call. The motion overlooks that portion of the cross-complaint which alleges, at Para. 10, that “before the end of his employment, [MP] engaged in numerous unlawful actions” [emphasis in original]. The cross-complaint then lists a number of such alleged unlawful actions. The same facts forming the basis of the cross-complaint are also included in defendant’s answer to the complaint (Fifteenth affirmative defense – legitimate business reasons). Thus, there will be a great deal of overlap in the evidence. Concomitantly, it would be a waste of judicial resources, require duplication of evidence, and risk inconsistent verdicts were there to be separate trials. 2) Motion to compel production of documents GRANTED IN ITS ENTIRETY. On the request for relief from waiver – Plaintiff and cross-defendants concede that they did not timely object to the notice to produce documents at deposition. Thus, they are deemed to have waived any objections (CCP §2025.410(a). They have attempted to seek relief from the waiver pursuant to CCP §2031.300. However, this attempt fails because: A) They did not file a formal motion. Like moving party, they could have applied for an order shortening time for the motion to be heard; and B) They did not serve a response that is in substantial compliance with the Code. In fact, moving party points out that they did not even produce the limited documents that they indicated they would be willing to produce. On the merits of the motion – Given that the objections are deemed waived, moving party need only demonstrate good cause for the documents. They have done so. The cross-defendants’ financial data is relevant to moving party’s claims in the cross-complaint. The damages claimed encompass all of the income generated by cross-defendants, including those which post-dated Mr. Ahmad’s departure from Patrol One. This order is conditioned on the parties’ entering into an “attorneys’ and experts’ eyes only” confidentiality agreement, to prevent wider disclosure of potentially sensitive financial information.
2.	Boranian vs. Sehgal	Unopposed demurrer by cross-defendants Sehgal to the first amended cross-complaint of the Warrens SUSTAINED WITH LEAVE TO AMEND. Amend within 15 days’ service of notice of ruling.
3.	Bowman vs. Tuan	1) Demurrer OVERRULED. A demurrer is not the proper vehicle to attack a claim for punitive damages, as the C/A to which it is appended is stated properly. 2) Motion to strike GRANTED WITH LEAVE TO AMEND except as to the allegation that moving party was arrested for DUI; as to that allegation, the motion is granted. The case cited by plaintiff, Dawes vs. Superior Court ((1980), 111 Cal.App.3d 82), as well as the case of Taylor vs. Superior Court (1979), 24 Cal.3d 890, require more facts to be pled than plaintiff has offered, from which it may reasonably be inferred that defendant consciously disregarded probable injury to others when he drove while under the influence of alcohol. Amend within 15 days’ service of notice of ruling.
4.	Casello & Lincoln vs. Tong	Off calendar
5.	Coastal Roofing Co., Inc. vs. Foundations, LLC	Unopposed motion to set aside dismissal GRANTED. On its own motion, the court sets an OSC re: sanctions. Plaintiff’s counsel must appear at the hearing – in person or telephonically – to show cause why sanctions should not be imposed for filing this case as an unlimited jurisdiction matter.
6.	Castillo vs. Anaheim City School District	Off calendar
7.	Eifler vs. Liscano	1) Motion to compel further responses to SROGs DENIED. As for #3, moving parties are presuming that responding party must be in possession of some of the information. That is not necessarily the case. In the absence of any evidence to the contrary, this court has no reason to find that responding party is untruthful. As for #4, apparently moving parties are seeking additional responses to RFAs #s 13 and 18, contending that RP did not include any facts upon which she based her responses. What facts could support a denial that RP did not purchase the alcohol which was present on the premises at the time of the incident? Likewise, what facts could support RP’s denial that she believed that Ms. Sowin was aware that minors had consumed alcohol on the premises during the year prior to the incident? MPs are essentially asking RP to prove a negative. Moving parties shall pay to responding party sanctions in the amount of $437.50 within 20 days’ service of notice of ruling. 2) Motion to compel further responses to RFAs GRANTED. The objections are not well-taken, as the admissions which were sought go to whether or not the subject premises were used as a “party” house, where minors consumed alcohol and were unsupervised. This, in turn, could lead to a finding that RP, and/or others, were negligent and proximately liable for the death of Beau Basset. Responding party shall pay as sanctions to moving parties $440.00 within 20 days’ service of notice of ruling.
8.	Fink vs. Shemtov	Motion for court to reconsider or clarify 8/27/2008 order DENIED. If this is a motion for reconsideration, moving party has not demonstrated any new or different facts, circumstances, or law (CCP §1008). The court previously considered, and rejected, moving party’s argument concerning the proof of service and notes that he cited to an unpublished opinion, in violation of CRC rule 8.1115. Viewed as a motion for clarification, moving party has not identified what needs to be clarified. For the parties’ edification, they should note that this court’s tentative ruling on the motion to compel and admit discovery was to deny the motion not only because of the ineffective proof of service but also because of the absence, in the filed papers, of the discovery requests themselves.
9.	Gran vs. Marco Crane & Rigging Co.	Motion for summary judgment or summary adjudication of issues by Southern California Edison Company – A) Marco Crane & Rigging Company’s opposition is disregarded by this court, as it is not a party to the motion. Moreover, the motion is not one where the court would be unable to readily distinguish between the causes of action; thus, the court will reach the merits of the motion. B) MP’s objection to the entirety of the declaration of Lewis C. Barbe is sustained. The only foundation to Mr. Barbe’s declaration is that he is employed by an entity called Occupational Safety and Health Services, Inc. and the self-serving statement that he is “duly qualified to testify as an expert in this action based upon [his] experience and qualifications and work performed in this case as a Safety Engineer for many years.” He does not provide a c.v. and does not expound on his qualifications. The foundation he offers is insufficient to qualify him as an expert on the subject matter of his declaration. C) The motion is ruled on as follows: 1) The motion for SAI against plaintiff Gail Gran on the 1^st C/A for negligence is granted. It is uncontradicted that plaintiff bases her theory of liability against SCE on her claim that SCE hired defendant Marco Crane & Rigging. It is also uncontradicted that SCE did not do so. In her opposition, plaintiff argues that the operative complaint embraces the possibility that MP was negligent because it failed to property construct and maintain its power lines. MP argues in its reply that this is a new theory of liability and should be disregarded. “[W]here a party in discovery has made an admission which justifies summary judgment in favor of his opponent, he cannot attempt to defeat the summary judgment motion by submitting a declaration contradicting the admission” (Prilliman vs. United Air Lines, Inc. (1997), 53 Cal.App.4^th 935, 961). Because Ms. Gran is bound by her discovery responses, the court declines to consider the newly-raised argument as to MP’s liability. Even if the court were to do so, the motion must be granted because, once Mr. Barbe’s declaration is disregarded, there is no admissible evidence that MP was negligent. 2) The motion for SAI against plaintiff Gene Gran is granted. Mr. Gran is asserting a bystander theory of negligent infliction of emotional distress. In light of the rationale in #1, supra, this MP did not breach a legal duty to Ms. Gran. Consequently, it is likewise not liable to Mr. Gran. 3) The motion for summary adjudication against both plaintiffs on the 2^nd C/A for ultra-hazardous activity is granted. “The doctrine of ultrahazardous activity provides that one who undertakes an ultrahazardous activity is liable to every person who is injured as a proximate result of that activity, regardless of the amount of care he uses. The doctrine of ultrahazardous activity focuses not on a product and its defects but upon an activity intentionally undertaken by the defendant, which by its nature is very dangerous … [T]he doctrine scrutinizes not the accident itself but the activity which led up to the accident …. Thus, the issue is whether maintenance of high-voltage power systems by public utilities is an ultrahazardous activity. We conclude it is not” (Pierce vs. Pacific Gas & Electric Co. (1985), 166 Cal.App.3d 68, 85; citations omitted and emphasis added). Indeed, plaintiffs concede that they cannot prevail on this C/A.
10.	Kring & Chung, LLP vs. Rhee	Motion to strike GRANTED WITHOUT LEAVE TO AMEND. As moving party points out, the provision upon which plaintiff relies, CC§1717.5(a), does not apply “unless that agreement [i.e. the retainer agreement herein] contains a statement that the prevailing party in any action between the parties is entitled to the fees provided by this section.” As the agreement between the parties makes no reference to this statute, plaintiff would not be entitled to attorneys’ fees if it were to prevail in the action.
11.	L.A. Commercial Group, Inc. vs. Nano-Life Holdings, LLC	Motion to be relieved as counsel CONTINUED to November 5, 2008, at 1:30 P.M. It appears that the notice of continuance of the hearing to today’s date was not served on the client. If in fact it was, and if it was timely, the court will grant the motion.
12.	Senator vs. Caldwell	1) Unopposed motion for order compelling respondents to provide necessary means, etc. GRANTED as follows: The court orders the California Department of Corrections to forthwith provide Mr. Senator with one copy each of printouts from the following web sites: www.springerlink.com/index/D90166YCHDAC1JKK/pdf www.geodentist.com/page.php?id=dental-glossary-30k- www.heraeus-kulzer.com/hkg/web/media/downloads/trouble-shootings/Venus_Step_by_Step_Guide-GB.pdf www.journals.elsevierhealth.com/periodicals/ympr/article/PIIS0022391305000417/abstract and www.ingentaconnect.com/content/bsc/jor/2005/00000032/00000001/art00006?crawler=true 2) Motion to compel compliance with discovery MOOT, as responses have been served (although belatedly).
13.	People vs. Burnstine	Motion to be relieved as counsel will be continued for hearing unless counsel submits proof that J.A.C Even Resources was served with the notice of hearing on today’s date, in which case the motion will be granted.
14.
15.
16.
17.
18.