Rulings 1

DEPARTMENT C-23 LAW AND MOTION POLICIES AND PROCEDURES

Judge David A. Thompson

Calendaring Dates - Law and motion matters are heard on Fridays at 9:30 a.m. The moving party is not required to reserve the hearing date prior to filing the motion. However, some hearing dates may not be available at the time the motion is filed. Therefore, counsel are advised not to wait until the last date to file. Call 714-834-3766 for unavailable dates.

Tentative Rulings - The Court will generally post tentative rulings by 3:00 p.m. on the day before the calendared motion date. Tentative rulings may be obtained either by calling the C-23 Clerk at 714-834-5002 or by visiting our website at http://www.occourts.org/rulings/thompson.asp

Oral Arguments/Waiver - If no appearances are made on the calendared motion date then oral argument will be deemed to have been waived and the tentative ruling will become the Court's final ruling. CRC, Rule 324(a)(2)

Notice of Rulings and Orders - Unless otherwise ordered the prevailing party shall give notice of the ruling and prepare any required order in accordance with CRC, Rule 391.

Notice of Procedures - The moving party shall include a copy of these procedures with the moving papers.

Ex Parte Applications - The Court requires a noticed motion whenever the order being sought affects any party's substantive rights, unless a statute specifically authorizes proceeding ex parte. Compliance with CRC, Rule 379 is always required. Ex parte matters are heard every day at 1:30 p.m. The ex parte fee must be paid in the Clerk's Office, Room D110 of the Central Justice Center, and the ex parte application must be filed in Department C-23, all no later than 12:00 noon on the day before the hearing.

Trial Dates and Continuances - The Court adheres to all Trial Court Delay Reduction Act time limitations and case disposition standards. CRC, Rule 375 and App. Div. 1 § 2, et. seq. Trial dates are firm and continuances are disfavored. However, A trial may be continued once, for a period not to exceed 30 days, by written stipulation between all counsel of record and no appearance is required. CCP § 595.2 All other continuance requests must be supported by competent declarations demonstrating "good cause." CRC, Rule 375.

Date: Friday July 15, 2005

CAL# CASE INFO TENTATIVE RULING

1 04CC11534

Adams
Defendant Ricks' demurrers on failure to state and uncertainty grounds are overruled. Answer to be filed within 10 days. Plaintiff Adams to give notice.

2 04CC10936

Castro
Continued to 8-5-05 at moving party's request.

3 04CC05269

Codefire
Cross-complainant Codefire Acquisition's motion for summary adjudication of the 1^st (breach of demand notes) cause of action in the cross-complaint is denied. Codefire Acquisition has not met it's initial burden under CCP § 437c(p)(1) with respect to the damages element of this claim. Codefire Acquisition has not produced any evidence concerning the amount of interest sought as damages, nor is that amount readily ascertainable. Furthermore, even if Codefire Acquisition had met it's initial burden and the burden shifted to plaintiff Codefire Inc., there is a triable issue of material fact with respect to the usury affirmative defense, which on it's face appears to have merit, at least as to the 20% post demand rate. I decline to rule on Codefire Acquisition's evidentiary objections since they are neither relevant nor material to my ruling. Plaintiff Codefire Inc. to give notice.

4 04CC12623

Condotta
(1)(3) Defendant MSI Computer's (a) demurrers to the first amended complaint on failure to state and uncertainty grounds are overruled, and (b) motion to strike (attorney's fee) portions of first amended complaint is granted with 10 days leave to amend.

(2) Specially appearing defendant MSI Taiwan's motion to quash service of summons and complaint is granted. MSI Computer to give notice.

5 03CC11140

Firemans
Off calendar pursuant to notice of settlement.

6 04CC08083

Gilmartin

(1) Defendant Blount's motion for summary judgment, or in the alternative summary adjudication, is denied. As a threshold matter, I elect to treat this as a motion for summary judgment only, because Blount has failed to comply with CRC Rule 342(b) in both the notice of motion and the separate statement. With respect to summary judgment, Blount has completely failed to sustain his initial burden of proof under CCP § 437c(o)(1) and (p)(2). For example, Blount primarily concludes the absence of an employment relationship with Tihanyi is fatal to all of plaintiff Gilmartin's claims. However, Blount never explains the legal basis for this conclusion or cites any relevant authority to support it, even if there is evidence no such relationship existed. Finally, assuming arguendo none of the foregoing were true and the burden shifted to Gilmartin, there are multiple triable issues of material fact. See: Blount's "undisputed" facts 1, 2, 3, 5, 6, 7, 8, !0, 11, 12, 13, 14, 15, 16, 17, 24, 25, 28, 31, 33, 36 and 41; Gilmartin's undisputed facts 42-72; and all of the evidence cited in support of and opposition to such facts. I have exercised my discretion and considered all of the pleadings filed by both parties, including those portions of Blount's moving papers which exceed the applicable page limitations [CRC rule 313(d)] and Gilmartin's one day late opposition papers [CCP § 437c(b)(2)] and all objections to such defects are expressly overruled. I have also exercised my discretion and considered all of the admissible evidence submitted by both parties, including the new evidence filed with Blount's reply papers. San Diego Watercrafts (2002) 102 CA4th 308; Biljac (1990) 218 CA3d 1410. If the parties want detailed and specific rulings on their evidentiary objections, each objecting party shall submit prior to the hearing a proposed order setting forth each individual item of evidence objected to verbatim, the grounds for that objection without argument, followed by the words "sustained" and "overruled", each with a box for the Court to check indicating the ruling. Gilmartin to submit proposed formal order reflecting the foregoing and satisfying the requirements of CCP § 437c(g).

6 04CC08083
Gilmartin
(2) Blount's motion for reconsideration is denied for failure to satisfy the requirements of CCP § 1008. Furthermore, even if reconsideration had been granted, after reconsideration in the light of the claimed new information, the original order would have been reaffirmed. Gilmartin to give notice.

7 04CC09786

Ornellas
Continued to 8-5-05 at moving party's request.

8 02CC05029

Lo
Off calendar at moving party's request.

9 03CC03823

Rivera
Plaintiff Rivera's motion to confirm arbitration award is granted. No opposition filed. Rivera to give notice.

10 03CC06769

Van

Steenhuyse
Defendant City of Fullertion's motion for new trial on the inverse condemnation claim is denied. As I have said before, I recognize a public agency has no duty to construct flood control facilities in order to protect property historically subject to flooding. However, a public agency which does construct flood control facilities is obligated to exercise reasonable care in the construction and maintenance of its facilities, or face liability for the resulting damage proximately caused to the property owner. Here, if the City had designed, constructed and maintained a whole flood control facility (ie. improvements on both the Unimproved City Easement and the Improved City Easment), rather than deliberately designing, constructing and maintaining one-half of a flood control facility (ie. improvements on the Improved City Easment only), we would not be having this discussion. Cf. Albers (1965) 62 C2d 250, 261-264. Furthermore, there is no inconsistency between (a) the jury's allocation of comparative fault among the Plaintiffs, the Rogers and others, and (b) my finding that the City's actions were unreasonable in comparison to the Plaintiffs', while the Plaintiffs' actions were reasonable in comparison to the City's. Finally, there is no double recovery. The $150,000 is to compensate for past damage, while the injunction permitting construction of the retaining wall is to prevent future damage. The following sentence from page 11 (lines 11-13) of the Amended Statement of Decision is hereby deleted: "The repaired VanSteenhuyse Property will still be worth about $95,000 less than it would have been worth if no flooding had occurred." This ruling is intended to amend and supplement the 5-17-05 Amended Statement of Decision and shall constitute a part thereof. Plaintiffs to give notice.

11 04CC02698

Wilson

(1)(2) Plaintiff Wilson's (a) motion to compel further responses to special interrogatories is moot and off calendar, and (b) motion to compel further responses to requests for production of documents is granted as follows. Defendant USAA shall produce all documents still in dispute within 10 days. All documents shall be produced subject to the confidentiality order. USAA shall redact information in the documents identifying non-parties on disability. The entire contract between USAA and Liberty Mutual shall be produced. I decline to conduct an in camera review at this time. USAA has provided no evidence to support its contentions that documents are proprietary or privileged. No sanctions.
(3) USAA's motion for summary judgment is denied. USAA's alternative motion for summary adjudication is (a) granted as to the 4th, 6th and 9th (contract, fraud and fiduciary duty) causes of action in the first amended complaint, and (b) denied in all other respects. The basis for these rulings is set forth in a detailed tentative ruling which has been sent to counsel by facsimile. In making these rulings I have relied only upon admissible evidence. Biljac (1990) 218 CA3d 1410. All objections to any of the evidence specifically cited in my rulings are expressly overruled. I decline to rule on the remainder of USAA's fifty-nine pages of evidentiary objections and (improper) argument since they are neither relevant nor material to my findings that triable issues exist. Similarly, I have not considered USAA's (i) sixty-six page "Reply To Plaintiff's Response To Separate Statement," or (ii) forty-nine page "Response To Plaintiff's Separate Statement." I am aware of no case, statute or rule which authorizes or even permits the filing of these pleadings that (1) contain additional argument which grossly exceeds the applicable page limitations of CRC Rule 313(d), and (2) contain "new" evidence which I exercise my discretion to ignore. San Diego Watercrafts (2992) 102 CA4th 308. I also exercise my discretion and deny USAA's request to disregard seven pages of Wilson's opposition which exceeds the page limitations. USAA's request for judicial notice is granted. Wilson to give notice.

CAL#	CASE INFO	TENTATIVE RULING
1	04CC11534 Adams	Defendant Ricks' demurrers on failure to state and uncertainty grounds are overruled. Answer to be filed within 10 days. Plaintiff Adams to give notice.
2	04CC10936 Castro	Continued to 8-5-05 at moving party's request.
3	04CC05269 Codefire	Cross-complainant Codefire Acquisition's motion for summary adjudication of the 1^st (breach of demand notes) cause of action in the cross-complaint is denied. Codefire Acquisition has not met it's initial burden under CCP § 437c(p)(1) with respect to the damages element of this claim. Codefire Acquisition has not produced any evidence concerning the amount of interest sought as damages, nor is that amount readily ascertainable. Furthermore, even if Codefire Acquisition had met it's initial burden and the burden shifted to plaintiff Codefire Inc., there is a triable issue of material fact with respect to the usury affirmative defense, which on it's face appears to have merit, at least as to the 20% post demand rate. I decline to rule on Codefire Acquisition's evidentiary objections since they are neither relevant nor material to my ruling. Plaintiff Codefire Inc. to give notice.
4	04CC12623 Condotta	(1)(3) Defendant MSI Computer's (a) demurrers to the first amended complaint on failure to state and uncertainty grounds are overruled, and (b) motion to strike (attorney's fee) portions of first amended complaint is granted with 10 days leave to amend. (2) Specially appearing defendant MSI Taiwan's motion to quash service of summons and complaint is granted. MSI Computer to give notice.
5	03CC11140 Firemans	Off calendar pursuant to notice of settlement.
6	04CC08083 Gilmartin	(1) Defendant Blount's motion for summary judgment, or in the alternative summary adjudication, is denied. As a threshold matter, I elect to treat this as a motion for summary judgment only, because Blount has failed to comply with CRC Rule 342(b) in both the notice of motion and the separate statement. With respect to summary judgment, Blount has completely failed to sustain his initial burden of proof under CCP § 437c(o)(1) and (p)(2). For example, Blount primarily concludes the absence of an employment relationship with Tihanyi is fatal to all of plaintiff Gilmartin's claims. However, Blount never explains the legal basis for this conclusion or cites any relevant authority to support it, even if there is evidence no such relationship existed. Finally, assuming arguendo none of the foregoing were true and the burden shifted to Gilmartin, there are multiple triable issues of material fact. See: Blount's "undisputed" facts 1, 2, 3, 5, 6, 7, 8, !0, 11, 12, 13, 14, 15, 16, 17, 24, 25, 28, 31, 33, 36 and 41; Gilmartin's undisputed facts 42-72; and all of the evidence cited in support of and opposition to such facts. I have exercised my discretion and considered all of the pleadings filed by both parties, including those portions of Blount's moving papers which exceed the applicable page limitations [CRC rule 313(d)] and Gilmartin's one day late opposition papers [CCP § 437c(b)(2)] and all objections to such defects are expressly overruled. I have also exercised my discretion and considered all of the admissible evidence submitted by both parties, including the new evidence filed with Blount's reply papers. San Diego Watercrafts (2002) 102 CA4th 308; Biljac (1990) 218 CA3d 1410. If the parties want detailed and specific rulings on their evidentiary objections, each objecting party shall submit prior to the hearing a proposed order setting forth each individual item of evidence objected to verbatim, the grounds for that objection without argument, followed by the words "sustained" and "overruled", each with a box for the Court to check indicating the ruling. Gilmartin to submit proposed formal order reflecting the foregoing and satisfying the requirements of CCP § 437c(g).
6	04CC08083 Gilmartin	(2) Blount's motion for reconsideration is denied for failure to satisfy the requirements of CCP § 1008. Furthermore, even if reconsideration had been granted, after reconsideration in the light of the claimed new information, the original order would have been reaffirmed. Gilmartin to give notice.
7	04CC09786 Ornellas	Continued to 8-5-05 at moving party's request.
8	02CC05029 Lo	Off calendar at moving party's request.
9	03CC03823 Rivera	Plaintiff Rivera's motion to confirm arbitration award is granted. No opposition filed. Rivera to give notice.
10	03CC06769 Van Steenhuyse	Defendant City of Fullertion's motion for new trial on the inverse condemnation claim is denied. As I have said before, I recognize a public agency has no duty to construct flood control facilities in order to protect property historically subject to flooding. However, a public agency which does construct flood control facilities is obligated to exercise reasonable care in the construction and maintenance of its facilities, or face liability for the resulting damage proximately caused to the property owner. Here, if the City had designed, constructed and maintained a whole flood control facility (ie. improvements on both the Unimproved City Easement and the Improved City Easment), rather than deliberately designing, constructing and maintaining one-half of a flood control facility (ie. improvements on the Improved City Easment only), we would not be having this discussion. Cf. Albers (1965) 62 C2d 250, 261-264. Furthermore, there is no inconsistency between (a) the jury's allocation of comparative fault among the Plaintiffs, the Rogers and others, and (b) my finding that the City's actions were unreasonable in comparison to the Plaintiffs', while the Plaintiffs' actions were reasonable in comparison to the City's. Finally, there is no double recovery. The $150,000 is to compensate for past damage, while the injunction permitting construction of the retaining wall is to prevent future damage. The following sentence from page 11 (lines 11-13) of the Amended Statement of Decision is hereby deleted: "The repaired VanSteenhuyse Property will still be worth about $95,000 less than it would have been worth if no flooding had occurred." This ruling is intended to amend and supplement the 5-17-05 Amended Statement of Decision and shall constitute a part thereof. Plaintiffs to give notice.
11	04CC02698 Wilson	(1)(2) Plaintiff Wilson's (a) motion to compel further responses to special interrogatories is moot and off calendar, and (b) motion to compel further responses to requests for production of documents is granted as follows. Defendant USAA shall produce all documents still in dispute within 10 days. All documents shall be produced subject to the confidentiality order. USAA shall redact information in the documents identifying non-parties on disability. The entire contract between USAA and Liberty Mutual shall be produced. I decline to conduct an in camera review at this time. USAA has provided no evidence to support its contentions that documents are proprietary or privileged. No sanctions. (3) USAA's motion for summary judgment is denied. USAA's alternative motion for summary adjudication is (a) granted as to the 4th, 6th and 9th (contract, fraud and fiduciary duty) causes of action in the first amended complaint, and (b) denied in all other respects. The basis for these rulings is set forth in a detailed tentative ruling which has been sent to counsel by facsimile. In making these rulings I have relied only upon admissible evidence. Biljac (1990) 218 CA3d 1410. All objections to any of the evidence specifically cited in my rulings are expressly overruled. I decline to rule on the remainder of USAA's fifty-nine pages of evidentiary objections and (improper) argument since they are neither relevant nor material to my findings that triable issues exist. Similarly, I have not considered USAA's (i) sixty-six page "Reply To Plaintiff's Response To Separate Statement," or (ii) forty-nine page "Response To Plaintiff's Separate Statement." I am aware of no case, statute or rule which authorizes or even permits the filing of these pleadings that (1) contain additional argument which grossly exceeds the applicable page limitations of CRC Rule 313(d), and (2) contain "new" evidence which I exercise my discretion to ignore. San Diego Watercrafts (2992) 102 CA4th 308. I also exercise my discretion and deny USAA's request to disregard seven pages of Wilson's opposition which exceeds the page limitations. USAA's request for judicial notice is granted. Wilson to give notice.