2. GEWALT v. PORTER PC20070222
Application to Appear Pro Hac Vice
Review Hearing re: Mediation
TENTATIVE RULING # 2; THE APPLICATION OF JOHN RELMAN TO APPEAR PRO HAC VICE IS GRANTED. APPEARANCES WILL BE REQUIRED AT THE REVIEW HEARING.

3. WIGNER v. CLARK SC20070225
Request for Default Judgment
TENTATIVE RULING # 3: THE MOTION IS GRANTED.

4. HORN v. O’DONNELL PC20070544
Minor Compromise
The minor was injured in an automobile accident on November 4, 2006, suffering substantial injuries. The medical records are in the file.
The proposed gross settlement is for $350,000. Total medical expenses to be paid from the judgment are $41,318.45 (line 10a) with costs of $ 4,099.18, for a total net to minor prior to attorney’s fees of $ 304,582.37. Attorney’s fees of 25% of the net sum amount to $ 76,145.59 for a net to minor of $ 228,436.78. The Court’s figures do not agree with the calculation in the petition.
TENTATIVE RULING # 4: PERSONAL APPEARANCES OF COUNSEL, PETITIONER AND THE MINOR ARE REQUIRED.

5. TRANS-SIERRA INVESTMENT v. MERRIKH SC20060207
Special Demurrer to Second Amended Cross-Complaint
The ground for the demurrer is that the complaint is uncertain.
Special demurrers for uncertainty are disfavored even where there are uncertainties or ambiguities because any ambiguities can be cleared up in the discovery process [Khoury v. Maly’s of California (1993) 14 Cal. App.4th 612. 616]. As one commentator put it, “Demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond, i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her.” [Weil and Brown, Civil Procedure Before Trial § 7:85].
Cross-defendant has found some small ambiguities which no doubt will be ferreted out in the discovery process. In total, they do not require that the special demurrer be sustained.
TENTATIVE RULING # 5: THE SPECIAL DEMURRER TO THE SECOND AMENDED CROSS-COMPLAINT IS OVERRULED.

6. NATIONAL BUSINESS FACTORS v. CANFIELD SCL20060013
Application for Judgment
TENTATIVE RULING # 6: GRANTED.

7. KLIMEK v. GREENWOOD SC20050210
Motion to Contest Good Faith Settlement
Moving defendant Greenwood made an improper left turn and struck a motorcycle driven by plaintiff Lawrence Klimek, who was seriously injured and allegedly became permanently disabled as a result. His wife has a claim for loss of consortium.
Greenwood went through bankruptcy and was discharged January 10, 2008; the discharge included plaintiffs’ claims in this action.
Greenwood’s company, Emerald Bay Trading LTD dba Advanced Medical Diagnostics is out of business, has no assets, and has no insurance. The Hartford Insurance Company, apparently Greenwood’s auto insurer, is offering the policy limits on his personal policy of $100,000.
Emerald Bay Trading LTD dba Advanced Medical Diagnostics, Greenwood’s company, has filed an objection to the motion but states no real basis. It contends that the Court should order the company included in the settlement, which of course the Court has no authority to do. By its nature the good faith settlement process contemplates piecemeal settlement of litigation; plaintiffs are under no obligation to settle with defendant company at this or any other time. Realistically, the only possibility that plaintiffs will ever receive any compensation as a result of this accident appears to be the insurance policy which is the subject of the proposed settlement.
TENTATIVE RULING # 7: THE MOTION TO CONTEST GOOD FAITH SETTLEMENT IS DENIED. THE SETTLEMENT IS APPROVED.

8. PORTER v. EMIGH PC20060160
Motion to Strike Settlement and Set for Trial
The motion is unopposed.
TENTATIVE RULING # 8: THE MOTION IS GRANTED. THE MATTER IS REFERRED TO THE CALENDAR CLERK TO SCHEDULE A FURTHER CASE MANAGEMENT CONFERENCE. NO ORAL ARGUMENT WILL BE PERMITTED ON THIS MOTION.

9. SOUTH TAHOE REDEVELOPMENT AGENCY v. DORSEY SC20060183
Defendants’ Motion to Recover Litigation Expenses
Plaintiff’s Motion to Tax Costs
Defendants move for litigation expenses pursuant to Code of Civil Procedure § 1250.410(b), which provides that a defendant’s litigation expenses are recoverable costs if the court “finds that the offer of the plaintiff was unreasonable and that the demand of the defendant was reasonable viewed in the light of the evidence admitted and the compensation awarded in the proceeding.”
In making its determination, the Court considers “the amount of the difference between the offer and the compensation awarded; the percentage of difference between the offer and the award; and the good faith, care, and accuracy utilized in formulating the amount of the offer and of the demand.” [Redevelopment Agency of the City of Long Beach v. Morales (2007) 157 Cal. App.4th 287, 291].
In this case the plaintiff’s offer was $2.8 million; defendants’ demand was $3.2 million; the jury verdict was $3.2 million. The difference between the offer and award is $400,000; the percentage difference between the offer and the award is 87.5%.
Defendants do not challenge the good faith or care plaintiff’s expert used in arriving at his valuation figure; they do challenge his dismissal of some comparable properties with low capitalization rates. Defendants also note that juries often pick a midpoint between experts. Plaintiff’s expert is an MAI appraiser with 37 years experience in appraising properties in the Tahoe Basin.
While the monetary differential between the offer and award is only one factor, the Court notes that “final offers which are 60 percent or less of the jury’s verdict are found to be unreasonable while offers which are above 85 percent have been considered reasonable per se” [People ex rel. Dept. of Transportation v. Yuki (1995) 31 Cal. App.4th 1754, 1764, quoted in Redevelopment Agency of the City of Long Beach v. Morales, supra, 157 Cal. App.4th at 292.].
The Court finds the Redevelopment Agency’s offer to be reasonable within the meaning of § 1250.410. Defendants’ motion to recover litigation expenses is denied.
TENTATIVE RULING # 9: COUNSEL ARE REFERRED TO THE FULL TEXT OF THE TENTATIVE RULING.

10. KING v. RILEY SC20070185
Motion to Set Aside Default
Default was entered against defendant on October 31, 2007. He was aware of the default but did not have the money to hire an attorney. He attended a Case Management Conference in December 2007, despite being in default, and was advised to obtain an attorney. The Court then continued the hearing to March 2007 so that defendant could obtain an attorney. Defendant retained an attorney who filed this motion on March 12, 2008, four and a half months after the default was entered.
Defendant has not demonstrated evidence of mistake, surprise, inadvertence or excusable neglect. Despite the fact that he lacked funds, he could have proceeded in pro per and he could have sought legal aid which is available to him. He did neither, and sympathy for the defendant unfortunately is not a statutory ground for vacating a default.
TENTATIVE RULING # 10: THE MOTION IS DENIED.

11. DUNCAN v. ARENZ SC20070187
Defendant’s Motion for Judgment on the Pleadings
Defendant Arenz moves for judgment on the pleadings as to the fifth cause of action, for conversion; the seventh cause of action, for intentional infliction of emotional distress; the eighth cause of action, for negligent infliction of emotional distress; and the twelfth cause of action, for elder abuse.
The complaint alleges that plaintiff is over 70 years old. He became involved in a dating relationship with Arenz, who immediately and repeatedly borrowed substantial amounts of money from plaintiff which was not repaid. Defendant, a licensed real estate broker, allegedly induced plaintiff into making a real estate investment in which she acted as the agent. She received a commission on the purchase of the property and then pocketed the proceeds when the property was sold.
Defendant contends that the fifth cause of action, for conversion, is vague and uncertain as it describes the property as “property consisting of diamond rings, necklaces, broaches and other such jewelry.” Defendant contends this is insufficiently specific. It is not, and whatever detail defendant needs will no doubt be provided in the discovery process. The motion is denied as to the fifth cause of action.
The seventh cause of action is for intentional infliction of emotional distress. The elements of the tort are “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.” [Ess v. Eskaton Properties, Inc. (2002) 97 Cal.App.4th 120, 129]. The conduct most be intentional or reckless, or at least “engaged in with the realization that injury will result.” On the element of outrageous conduct, the Court in Eskaton stated the test as “Generally, conduct will be found to be actionable where the 'recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’ ” [Id. at 130].
The pattern of conduct alleged in the complaint, if true, could easily be construed by a reasonable person as conduct engaged in with knowledge that injury might result. In view of plaintiff’s age and the amount of monetary loss, alleged to be $350,000, the facts could arouse the resentment of an average member of the community; the alleged conduct is “outrageous” for purposes of pleading the cause of action. The motion is denied as to the seventh cause of action.
The eighth cause of action is for negligent infliction of emotional distress. While defendant is correct that this is a species of negligence and not an independent tort, she is incorrect in stating that “negligent infliction of emotional distress is not a recognized cause of action in California” [Defendant’s Memorandum of Points and Authorities, page 6:12-13]. For example, there would not be a jury instruction for it [CACI 1620] if it were not recognized in California. To prevail on this cause of action, plaintiff must prove the usual elements of the tort of negligence and, in addition, prove that the distress was serious and severe, as opposed to trivial or transitory [Bogard v. Employers’ Casualty Co. (1985) 164 Cal. App.3d 602, 617-618]. The motion is denied as to the eighth cause of action.
The ninth cause of action is for breach of the implied covenant of good faith and fair dealing. Outside the insurance context, there is no such tort; it is a form of breach of contract, and there is no contract between the parties alleged. The motion is granted as to the ninth cause of action.
The twelfth cause of action is for elder abuse. The Elder Abuse and Dependent Adult Civil Protection Act [Welfare & Institutions Code § 15600 et seq.] “does not create a cause of action as such, but provides for attorney fees, costs and punitive damages under certain conditions” [[Berkley v. Dowds (2007)152 Cal.App.4th 518, 529]. Financial abuse is one form of abuse addressed by the Act [Welfare & Institutions Code § 15610.07(a)] and may occur, for example, when a person “[t]akes, secretes, appropriates, or retains real or personal property of an elder or dependent adult to a wrongful use or with intent to defraud, or both” [Welfare & Institutions Code § 15610.30(a)(1)].
It appears that pleading elder abuse is like pleading entitlement to exemplary damages: neither is a cause of action, while both may be properly pleaded in a complaint. The Court will therefore grant the motion on the technical ground that “elder abuse” is not a cause of action; however, the Court will not order the complaint amended as the pleading is adequate to demonstrate a possible entitlement to attorney’s fees, costs, and punitive damages under the statute.
TENTATIVE RULING # 11: COUNSEL ARE DIRECTED TO THE FULL TEXT OF THE TENTATIVE RULING.

12. USSERY PARTNERS v. LAKE VALLEY FIREFIGHTERS SC20070264
Special Motion to Strike Complaint
TENTATIVE RULING # 12: THE COURT HAVING BEEN ADVISED THAT THE MATTER IS SETTLED, THE MOTION IS ORDERED OFF CALENDAR.

13. MATTER OF CRICKETT KEENE-DICKINSON SC20080040
Name Change
TENTATIVE RULING # 13: THE PETITION WILL BE GRANTED UPON FILING PROOF OF PUBLICATION.

14. WILLIAMS v. U-HAUL SC20080038
Minor’s Compromise; Appointment of GAL
The date of the accident is stated to be June 19, 1999 and is stated to have occurred in Pollack Pines.
There are no medical reports or accident reports attached to the petition.
The costs to be deducted from the gross settlement figure of $10,000 are (1) $320 in court costs; (2) $804.46 to Dr. Worth; (3) $244.12 Dr. Naccarato for total costs of $1368.58. Attorney’s fees are $1,875. The net to minor is $6,756.42.
TENTATIVE RULING # 14: PERSONAL APPEARANCES OF COUNSEL, PETITIONER, AND THE MINOR ARE REQUIRED AT THE HEARING.

15. CITIBANK v. MEYER SCL20070215
Review Hearing (Collection Case)
TENTATIVE RULING # 15: A DISMISSAL HAVING BEEN FILED, THE MATTER IS ORDERED OFF CALENDAR.

16. RESURGENCE FINANCIAL v. ZEID SCL20070269
Review Hearing (Collection Case)
This collection case was filed September 17, 2007 and no proof of service has been filed.
TENTATIVE RULING # 16: PURSUANT TO CALIFORNIA RULES OF COURT, RULE 3.740(e), THE COURT WILL SET AN OSC RE: MONETARY SANCTIONS AS TO PLAINTIFF’S COUNSEL FOR FRIDAY, MAY 23, 2008 AT 1:30 PM. THE PERSONAL APPEARANCE OF COUNSEL WILL BE REQUIRED AT THE HEARING UNLESS PROOF OF SERVICE IS FILED BY MAY 22, 2008.

17. NATIONAL BUSINESS FACTORS v. LOPEZ SCL20070219
Defendant’s Motion to Set Aside Default
Default judgment was entered against defendant on November 26, 2007. He filed a motion to set aside default on March 20, 2008; however, he has not served the motion on plaintiff.
TENTATIVE RULING # 17: DEFENDANT IS ADVISED HE MUST RE-NOTICE THE MOTION AND SERVE A COPY OF IT ON PLAINTIFF.