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Superior Court of
California
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Tentative Rulings: | Placerville 1 || Placerville 2 | SLT 3 | SLT 4 | Placerville 6 | Cameron Park 9 | |
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1. MATTER OF TETREAULT PC-20080155 OSC Re:
Name Change. The petition
filed with the court is incomplete. Only the first page of the Judicial
Council Form NC-100 is in the court’s file. In addition,
there is no proof of publication in the court’s file. “* * *A copy
of the order to show cause shall be published pursuant to Section 6064
of the Government Code in a newspaper of general circulation to be
designated in the order published in the county. If no newspaper of
general circulation is published in the county, a copy of the order
to show cause shall be posted by the clerk of the court in three of
the most public places in the county in which the court is located,
for a like period. Proof shall be made to the satisfaction of the court
of this publication or posting, at the time of the hearing of the application. ¶ Four
weekly publications shall be sufficient publication of the order to
show cause. If the order is published in a daily newspaper, publication
once a week for four successive weeks shall be sufficient. * * *” (Code
of Civil Procedure, § 1277(a).) TENTATIVE
RULING # 1: APPEARANCES ARE REQUIRED AT 9:00 A.M. ON THURSDAY, MAY
1, 2008 IN DEPARTMENT NINE. 2. MATTER OF GAZELLE PC-20080141 OSC Re:
Name Change. TENTATIVE
RULING # 2: ABSENT OBJECTIONS, THE PETITION IS GRANTED. 3. MATTER OF ANDERSEN PC-20080123 OSC Re:
Name Change. Petitioner failed to execute the declaration at paragraph 6.f. of the petition. TENTATIVE
RULING # 3: APPEARANCES ARE REQUIRED AT 9:00 A.M. ON THURSDAY, MAY
1, 2008 IN DEPARTMENT NINE. 4. MATTER OF J.E. TVETEN CORP. PC-20080054 Judgment
Debtor Examination. TENTATIVE
RULING # 4: THE PERSONAL APPEARANCE OF THE DEBTOR IS REQUIRED AT
9:00 A.M., THURSDAY, MAY 1, 2008 IN DEPARTMENT NINE. 5. MATTER OF Judgment
Debtor Examination. TENTATIVE
RULING # 5: UPON REQUEST OF THE JUDGMENT CREDITOR, THIS MATTER IS
DROPPED FROM THE CALENDAR. 6. SMEDBERG v. TOSTE PC-20060340 Third
Person Examination. On March 24, 2008 an order to a third person, Robin Toste, to appear and be examined was issued. The date of hearing was hand printed on the notice as May 1, 2008 and initialed on the copy in the court’s file. A civil subpoena duces tecum for personal appearance and production of documents directed at Robin Toste was also filed with the court. A list of 43 documents was attached to the subpoena. That civil subpoena also had the date of hearing of May 1, 2008 hand printed on the notice portion of the subpoena. On April 7, 2007 a proof of personal service of the order to appear for examination and subpoena duces tecum was filed, which declares that Robin Toste was personally served on March 30, 2008. Robin
Toste objects to appearing and producing documents on May 1, 2008 on
the ground that since the date of May 1, 2008 was hand printed on the
notices of hearing after another date was crossed out, it is vague
and uncertain when the hearing is to take place. Inasmuch as Robin
Toste has written notice that a hearing is scheduled for May 1, 2008
as expressly stated on the document served, Robin Toste has clear notice
that there is an order to appear on May 1, 2008 and a subpoena directing
appearance on May 1, 2008. The order and subpoena as written is not
vague or uncertain. The objection is overruled. Robin Toste
also objects that the documents relating to Robin Toste’s appearance
was not served on counsel. That objection is overruled. In addition,
there were several civil subpoenas duces tecum filed seeking consumer
records. The following objections to these subpoenas are raised: that
most were not signed; they are vague and unclear due to a hand written
date of May 1, 2008 being placed on them and another date crossed out;
and that Toste’s counsel was not served with them. TENTATIVE
RULING # 6: THE PERSONAL APPEARANCE OF THE ROBIN TOSTE IS REQUIRED
AT 9:00 A.M., THURSDAY, MAY 1, 2008 IN DEPARTMENT NINE. 7. CAPITAL ONE BANK v. KLEINE PCL-20070286 OSC Re:
Additional Sanctions for Failure to Pay Sanctions. On
June 28, 2008 sanctions in the amount of $150 were imposed on defense
counsel for failure to appear at the December 11, 2007 mandatory settlement
conference. The sanctions were ordered to be paid to the court on or
before March 11, 2008. The minute order was served by mail on February
29, 2008 to defense counsel at TENTATIVE
RULING # 7: THIS MATTER IS CONTINUED TO 9:00 A.M. ON THURSDAY, MAY
29, 2008 IN DEPARTMENT NINE. 8. FORD MOTOR CREDIT CO., LLC v. JONES PCL-20070664 Hearing
Re: Failure to File Request for Entry of Default Judgment. Plaintiff
filed a collection action against defendant on September 10, 2007.
Default was entered on December 6, 2007 against Douglas Jones. Service
has not been effected on defendant Linda Porter a.k.a. Linda E. Porter. Plaintiff’s
counsel failed to appear at the March 27, 2008 hearing. The court ordered
the filing of a request for entry of default judgment within 30 days
and continued the matter to this date. There is no request for entry
of default judgment against Douglas Jones in the court’s file. TENTATIVE
RULING # 8: APPEARANCES ARE REQUIRED AT 9:00 A.M. ON THURSDAY, MAY
1, 2008 IN DEPARTMENT NINE. 9. CAPITAL ONE BANK v. CARNETT PCL-20070736 Hearing
Re: Failure to File Request for Entry of Default Judgment. TENTATIVE
RULING # 9: A DEFAULT JUDGMENT HAVING BEEN ENTERED ON APRIL 22, 2008,
THIS MATTER IS DROPPED FROM THE CALENDAR. 10. CAPITAL ONE BANK v. Hearing
Re: Failure to File Request for Entry of Default Judgment. On
October 29, 2007 plaintiff filed an action for breach of contract and
common counts related to a credit account. Default was entered against
defendant on December 24, 2007. There is no request for entry of default
judgment in the court’s file. TENTATIVE
RULING # 10: APPEARANCES ARE REQUIRED AT 9:00 A.M. ON THURSDAY, MAY
1, 2008 IN DEPARTMENT NINE. 11. NO GRIDLOCK COMMITTEE
v. EL DORADO COUNTY PC-20060502 Status
Review Hearing. On March 6, 2008, at the prior hearing on this matter, attorney Infusino for plaintiff, advised the court that he had received another 21 volumes for a total of 32. Counsel Livingston for defendant and attorney Infusino stipulated to set another status review hearing. The Court continued the hearing to May 1, 2008 at 9:00 A.M. in Department 9. TENTATIVE
RULING # 11: APPEARANCES ARE REQUIRED AT 9:00 A.M. ON FRIDAY, MAY
1, 2008 IN DEPARTMENT NINE. 12. PEFLEY v. JOHN PADJEN
MOTORSPORTS PC-20070407
(1)
Demurrer to 1st Amended
Complaint.
(2)
Motion to Strike 1st Amended
Complaint. TENTATIVE
RULING # 12: THESE MATTERS ARE CONTINUED TO 9:00 A.M. ON THURSDAY,
JUNE 12, 2008, IN DEPARTMENT NINE. 13. D’ANNA v. MARSHALL MEDICAL
CENTER PC-20080074 Demurrer
to Complaint TENTATIVE RULING # 13: THIS MATTER IS CONTINUED TO 9:00 A.M. ON THURSDAY, JUNE 12, 2008, IN DEPARTMENT NINE. 14. GIFFIN v. KEHOE PC-20030158 OSC Re:
Contempt Against Michael Kehoe and Bonnie Kehoe. TENTATIVE RULING # 14: THIS MATTER IS CONTINUED TO 9:00 A.M. ON THURSDAY, MAY 15, 2008, IN DEPARTMENT NINE. 15. SACCO v. WICHERT PC-20060266 Cross-Defendant
C&C Mechanical, Inc.’s Motion for Determination of Good Faith
Settlement. TENTATIVE RULING # 15: THIS MATTER IS CONTINUED TO 9:00 A.M. ON THURSDAY, MAY 29, 2008, IN DEPARTMENT NINE. 16. MID-STATE BUILDERS, INC.
v. FRANK PC-20070278 Defendants
Frank’s Motion to Fix and Allow Attorney Fees and Code of Civil
Procedure, § 998 Costs. Defendants
move for an order under sections 1033.5 of the Code of Civil Procedure
(all section references herein are to the Code of Civil Procedure)
finding that they are the prevailing parties in this action and awarding
them attorney’s fees and costs. They
also request an order under section 998 awarding them expert witness
fees.
As appears
from the pleadings, plaintiff, a contractor, commenced this action
for breach of contract against defendants to collect in excess of $80,000
it claimed was due for construction work performed on defendants’ home. Defendants cross-complained for construction
defects. On March 20, 2008,
a jury returned a verdict denying plaintiff’s breach of contract claim
and awarding defendants damages in the sum of $20,127. Defendants
now seek an order determining that they are the prevailing parties
and awarding them $70,595.
Also, during
settlement negotiations, defendants served an offer of settlement under
section 998 to allow plaintiff to have judgment against them in the
sum of $25,001. They now seek
an award of $4,062.50 in expert witness fees.
Under section
1032(b), a party who prevails in a civil action is entitled to recover
costs as a matter of right. (Lincoln
v. Schurgin (1995) 39 Cal.App.4th 100, 104.) Under section 1033.5(a)(10),
attorney’s fees are available to a prevailing party only where they
are specifically authorized by a contract, statute or other law. (Santisas
v. Goodin (1998) 17 Cal.4th 599, 606.) And, where attorney’s
fees are authorized by a contract, under section 1717(a), they may
be awarded to the prevailing party, whether or not he is the party
specified in the contract. Finally,
if the contract contains an attorney’s fee clause which applies to
some of the terms of a contract, e.g. “for collection,” then, under
section 1717(a), it applies to all of the terms of the contract. (Boyd
v. Oscar Fisher Co. (1989) 210 Cal.App.3d 368, 380.)
In this case, plaintiff sued on a written
contract, a copy of which is attached to the declaration of David Becker,
the attorney for defendants. The
contract provides for attorney’s fees as follows:
“In the event that it becomes necessary to institute suit
or to employ an attorney to collect any payments due contractor under
this agreement or any modification thereof, you shall be liable for
all court costs and attorney’s fees so incurred by contractor.”
Defendants are clearly the prevailing
parties. Plaintiff sued them
for excess of $80,000. Defendants
offered to settle by paying plaintiffs $25,001. Plaintiff’s
rejected the offer thereby requiring defendants to litigate the matter
through trial, which defendants did and won a verdict of in excess
of $20,000 against plaintiff.
In his declaration, Mr. Becker, states
that he has personally tried over one hundred jury trials and over
400 judge trials over the last 24 years, that his experience includes
cases involving real estate, business torts, and personal injury, that
he is a member of the Association of Trial Lawyers of America and that
he has an AV rating with Martindale Hubbell. He
says that he has charged $300 per hour for his services and $125 per
hour for paralegal services since 2004.
Mr. Becker’s legal abilities are well
known to the Court and while $300 per hour is on the high side of reasonable
in El Dorado County (although not in the Greater Sacramento Area of
which El Dorado County is a part), Mr. Becker’s abilities are also
on the high side. The Court
finds that the amounts charged by Mr. Becker for services in this case
are reasonable.
Also, the Court has reviewed the statement
of services attached to Mr. Becker’s declaration and finds that the
services rendered and time spent were reasonable and necessary considering
the claims made. Finally, the court has reviewed the moving papers
regarding defendant’s expert witness fees. The
court finds that the services were reasonable and necessary and that
the amount expended and claimed, $4,062.40, Is reasonable and necessary.
Plaintiff has not filed an opposition.
TENTATIVE RULING # 16: THE COURT
FINDS THAT DEFENDANTS ARE THE PREVAILING PARTIES AND DEFENDANTS ARE
ENTITLED TO AN AWARD OF $70,595 AS ATTORNEY’S FEES AND COSTS AGAINST
PLAINTIFF. DEFENDANTS ARE ALSO ENTITLED TO AN AWARD OF
$4,062.50 FOR EXPERT FEES PURSUANT TO CODE OF CIVIL PROCEDURE, § 998 AGAINST PLAINTIFF. NO
HEARING ON THIS MATTER WILL BE HELD (LEWIS V. SUPERIOR COURT (1999) 19 CAL.4TH 1232, 1247.), UNLESS ORAL
ARGUMENT IS REQUESTED BY COURT CALL OR PERSONAL APPEARANCE IN DEPARTMENT
NINE AT 9:00 A.M. ON THURSDAY, MAY 1, 2008. IF THE COURT GRANTS THE
REQUEST FOR A HEARING, A HEARING DATE AND TIME WILL BE SET DURING THAT
PERSONAL OR TELEPHONIC APPEARANCE.
17. YUBACON v. EL DORADO
IRRIGATION DISTRICT PC-20070379
(1)
Defendant El Dorado Irrigation
District’s Motion for Judgment on the Pleadings.
(2)
Motion for Continuance of Trial Date and
All Pretrial Dates. Defendant
El Dorado Irrigation District’s Motion for Judgment on the Pleadings. Defendant
filed a motion for judgment on the pleadings on November 30, 2007 on
the grounds that the plaintiff’s complaint fails to state a cause of
action against defendant. Plaintiff’s
complaint filed on June 21, 2007 states that it is a general contractor
seeking damages incident to underground construction work it performed
on the project known as the El Dorado Hills, Phase 1.2A Saratoga Way
Project (“Project”). Plaintiff
entered into an agreement with El Dorado County Department of Transportation
(“County”) to build the project. Unbeknownst
to plaintiff, defendant El Dorado Irrigation district (“EID”) entered
into a separate contract with the County under which EID promised to
pay plaintiff directly for certain extra work (“Reimbursement Agreement”). Plaintiff alleges that it is the direct and
intended third-party beneficiary of the Reimbursement Agreement and
it seeks to recover the monies it is due under the Reimbursement Agreement
(Complaint, page 1, line 21 through line 28). Plaintiff
opposes the motion on the grounds that plaintiff Yubacon was an intended
beneficiary of the Reimbursement Agreement between defendant EID and
the County. Defendant
EID filed a reply on January
16, 2008. Plaintiff’s general allegations in the complaint are: (1) On or about April 26, 2004, the County entered into a Reimbursement Agreement with EID under which EID promised to pay for construction work related to EID’s utility facilities on the Project. Under the Reimbursement Agreement, EID agreed to pay the contractor directly, on a “force account” basis for extra work related to utilities. A copy of the Reimbursement Agreement is attached to the complaint as Exhibit A (Complaint, page 2, ¶ 8.) (2) On or about September
2004, plaintiff Yubacon entered into a contract with the County (“Contract”)
to construct the Project. The
Project work generally consisted of improving existing roadways and
constructing new ones at the Highway 50/Latrobe Road/El Dorado Hills
Boulevard interchange. The work
involved excavations deeper than four feet and substantial work related
to underground utilities, implicating both Public Contract Code, § 7104
and Government Code, § 4215. (Complaint,
page 3, ¶ 9.), (3) Pursuant to the Contract, plaintiff completed the Project while encountering recurring and severe problems related to EID’s utilities which resulted in a dramatic increase to plaintiff’s cost of performance. (Complaint, page 3, ¶ 10.). The complaint
consists of a single cause of action for breach of contract. Plaintiff Yubacon alleges that defendant EID
breached the Reimbursement Agreement by failing to pay County and/or
Yubacon for damages caused to Yubacon by EID on the Project. (Complaint,
page 3, ¶ 12.). Plaintiff further
alleges that it has performed all conditions and covenants required
of it under the Reimbursement Agreement including compliance with any
contractual or statutory notice and/or claim requirements except those
is has been prevented or excused from performing. (Complaint, page
3, ¶ 13.) and that as a proximate result of EID’s breach, plaintiff
Yubacon has suffered damages exceeding $1,000,000. (Complaint, page
3, ¶ 14.). Motion for Judgment on the Pleadings – Defendant’s
Motion “A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. (Citations omitted.)” (Cloud v. Northrup Grumman Corp. (1998) 67 Cal.App. 4th 995, 999.) “The standard for granting a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law. (Code Civ. Proc., § 438, subd. (d); Smiley v. Citibank (1995) 11 Cal.4th 138, 146 [44 Cal.Rptr.2d 441, 900 P.2d 690].) [Footnote omitted.] ¶ Judgment on the pleadings does not depend upon a resolution of questions of witness credibility or evidentiary conflicts. In fact, judgment on the pleadings must be denied where there are material factual issues that require evidentiary resolution. (Bach v. McNelis (1989) 207 Cal.App.3d 852, 865-866 [255 Cal.Rptr. 232].)” (Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216.) “Because a motion for judgment on the pleadings is the functional equivalent of a general demurrer, the same rules apply. (People v. $20,000 U.S. Currency (1991) 235 Cal.App.3d 682, 691 [286 Cal.Rptr. 746].) ¶ The motion is confined to the face of the pleading under attack, and all facts alleged in the complaint must be accepted as true. (Rangel v. Interinsurance Exchange (1992) 4 Cal.4th 1, 7 [842 P.2d 82, 14 Cal.Rptr.2d 783].)” (Hightower v. Farmers Ins. Exchange (1995) 38 Cal.App.4th 853, 858.) In ruling on a demurrer or a motion for judgment on the pleadings, leave to amend should be granted if there is any reasonable possibility that the plaintiff can state a good cause of action. (Virginia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th 1848, 1852.) “Where a demurrer is sustained or a motion for judgment on the pleadings is granted as to the original complaint, denial of leave to amend constitutes an abuse of discretion if the pleading does not show on its face that it is incapable of amendment.” Virginia G., supra at page 1852. Based upon the above authorities, the Court will rule on the motion by reviewing plaintiff’s complaint. Third Party Beneficiary. “Under
California law third party beneficiaries of contracts have the right
to enforce the terms of the contract under Civil Code, section 1559
which provides: "A contract made expressly for the benefit of
a third person, may be enforced by him at any time before the parties
thereto rescind it." Traditional third party beneficiary principles
do not require that the person to be benefited be named in the contract.
(Garratt v. Baker (1936)
5 Cal.2d 745, 748, 56 P.2d 225; Alling v. Universal Manufacturing Corp. (1992) 5 Cal.App.4th 1412,
1440, 7 Cal.Rptr.2d 718, 1 Witkin, Summary of Cal. Law (9th ed.1987) § 666,
pp. 604-605.) A third party may qualify as a beneficiary under a contract
where the contracting parties must have intended to benefit that individual
and such intent appears on the terms of the agreement. (Southern Cal. Gas Co. v. ABC Construction Co. (1962) 204 Cal.App.2d
747, 750-752, 22 Cal.Rptr. 540; Ascherman
v. General Reinsurance Corp. (1986) 183 Cal.App.3d 307, 311, 228
Cal.Rptr. 1.) It is well settled, however, that Civil Code section
1559 excludes enforcement of a contract by persons who are only incidentally
or remotely benefited by the agreement. (Lucas
v. Hamm (1961) 56 Cal.2d 583, 590, 15 Cal.Rptr. 821, 364 P.2d 685; Hartman Ranch Co. v. Associated Oil Co. (1937)
10 Cal.2d 232, 244, 73 P.2d 1163.)” (Harper v. Wausau Ins. Co. (1997)
56 Cal.App.4th 1079, 1086-1087.) “’Under California law third party beneficiaries of contracts have the right to enforce the terms of the contract under Civil Code section 1559 which provides: “A contract, made expressly for the benefit of a third person, may be enforced by him at any time before the parties thereto rescind it.” ‘ (Harper v. Wausau Ins. Co. (1997) 56 Cal.App.4th 1079, 1086, 66 Cal.Rptr.2d 64.) The promise in such a situation is treated as having been made directly to the third party. (Outdoor Services, Inc. v. Pabagold, Inc. (1986) 185 Cal.App.3d 676, 681, 230 Cal.Rptr. 73.) The third party need not be identified by name. It is sufficient if the third party belongs to a class of persons for whose benefit the contract was made. (Principal Mutual Life Ins. Co. v. Vars, Pave, McCord & Freedman (1998) 65 Cal.App.4th 1469, 1485, 77 Cal.Rptr.2d 479.) It is not necessary, however, that the contract be exclusively for the benefit of the third party; he need not be the sole or primary beneficiary. (COAC, Inc. v. Kennedy Engineers (1977) 67 Cal.App.3d 916, 920, 136 Cal.Rptr. 890; 1 Witkin, Summary of Cal. Law (9th ed. 1987) Contracts § 665, p. 603.)” (Johnson v. Superior Court (2000) 80 Cal.App.4th 1050, 1064.) “’Whether the third party is an intended beneficiary or merely an incidental beneficiary involves construction of the intention of the parties, gathered from reading the contract as a whole in light of the circumstances under which it was entered. [Citation.]’ (Eastern Aviation Group, Inc. v. Airborne Express, Inc. (1992) 6 Cal.App.4th 1448, 1452, 8 Cal.Rptr.2d 355; accord Bancomer, S.A. v. Superior Court (1996) 44 Cal.App.4th 1450, 1458, 52 Cal.Rptr.2d 435.)” (Cione v. Foresters Equity Services, Inc. (1997) 58 Cal.App.4th 625, 636.) The Third District Court of Appeal has held: “"The test for determining whether a contract was made for the benefit of a third person is whether an intent to benefit a third person appears from the terms of the contract. [Citation.] If the terms of the contract necessarily require the promisor to confer a benefit on a third person, then the contract, and hence the parties thereto, contemplate a benefit to the third person. The parties are presumed to intend the consequences of a performance of the contract." (Johnson v. Holmes Tuttle Lincoln-Mercury, Inc. (1958) 160 Cal.App.2d 290, 296-297, 325 P.2d 193.) ¶ This rule is codified: "A contract, made expressly for the benefit of a third person, may be enforced by him at any time before the parties thereto rescind it." (Civ.Code, § 1559.) "The word 'expressly,' by judicial interpretation, has now come to mean merely the negative of 'incidentally.' " (Gilbert Financial Corp. v. Steelform Contracting Co. (1978) 82 Cal.App.3d 65, 70, 145 Cal.Rptr. 448.) Also, the contract need not be exclusively for the benefit of the third party. He does not need to be the sole or the primary beneficiary. (Johnson v. Superior Court (2000) 80 Cal.App.4th 1050, 1064, 95 Cal.Rptr.2d 864.) ¶ In contrast, "[a] third party who is only incidentally benefited by performance of a contract is not entitled to enforce it. [Citation.] ' "The fact that he is incidentally named in the contract, or that the contract, if carried out according to its terms, would inure to his benefit, is not sufficient to entitle him to demand its fulfillment. It must appear to have been the intention of the parties to secure to him personally the benefit of its provisions." ' [Citation.] Whether the third party is an intended beneficiary or merely an incidental beneficiary involves construction of the intention of the parties, gathered from reading the contract as a whole in light of the circumstances under which it was entered." (Eastern Aviation Group, Inc. v. Airborne Express, Inc. (1992) 6 Cal.App.4th 1448, 1452, 8 Cal.Rptr.2d 355, italics in original.) ¶ Generally, it is a question of fact whether a particular third person is an intended beneficiary of a contract. (Bancomer, S.A. v. Superior Court (1996) 44 Cal.App.4th 1450, 1458, 52 Cal.Rptr.2d 435.) However, where, as here, the issue can be answered by interpreting the contract as a whole and doing so in light of the uncontradicted evidence of the circumstances and negotiations of the parties in making the contract, the issue becomes one of law that we resolve independently.” (Prouty v. Gores Technology Group (2004) 121 Cal.App.4th 1225, 1232-1233.) As stated in the Bancomer case, supra, it is a question of fact – and not of pleadings – whether a particular third person is an intended beneficiary of a contract. Facts are evidence and, in ruling on a motion for judgment on the pleadings, the Court is not reviewing evidence; rather, the court is ruling on the sufficiency of the pleadings. The EID contract with the County of April 6, 2004, which preceded the contract between the County and plaintiff Yubacon on September 2004, clearly anticipated a third party contractor: “EID requests that County include the installation of replaced EID facilities and/or the relocation of its affected facilities…in County’s construction bid package, award documents and construction contract…”(Reimbursement Agreement, ¶ 2.), “…”The invoices submitted by the County will include an accounting of any amount retained by the County from the contractor, and EID will not be liable for payment of any retention amount shown on the invoices until County pays retention to the contractor or escrow account…”(Reimbursement Agreement, ¶ 2.D.) “Any and all additional work request by EID shall be at EID’s expense, and shall be executed by force count or by EID’s direct negotiated price with the County’s Contractor…”(Reimbursement Agreement, ¶ 11.) Thus,
the words of the Reimbursement Agreement, the timing of the Agreement
and the circumstances surrounding the Agreement confirm that the “contractor” anticipated
by the signatories and, who, by entering into the contract of September
2004 with the County, became plaintiff Yubacon. It appears to the Court from the allegations
of the complaint and the contract attached as an exhibit to the complaint
that plaintiff was adequately alleged to be the primary financial beneficiary
of the Reimbursement Contract by virtue of its performance of the contract
of September 2004. The motion for judgment on the pleadings is denied. Motion
for Continuance of Trial Date and All Pretrial Dates. On March 24, 2008, defendant filed a motion for continuance on the grounds that, without a ruling on its motion for judgment on the pleadings, the parties have been prevented from resolving the pleading issue and completing a meaningful ADR process necessary for the case to be ready for trial now set for June 16, 2008. TENTATIVE RULING # 17: APPEARANCES ARE REQUIRED AT 9:00 A.M. ON THURSDAY, MAY 1, 2008 IN DEPARTMENT NINE CONCERNING THE MOTION TO CONTINUE THE TRIAL. DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS IS DENIED. NO ORAL ARGUMENT WILL BE PERMITTED CONCERNING THE MOTION FOR JUDGMENT ON THE PLEADINGS (LEWIS V. SUPERIOR COURT (1999) 19 CAL.4TH 1232, 1247.), UNLESS ORAL ARGUMENT IS REQUESTED BY COURT CALL OR PERSONAL APPEARANCE IN DEPARTMENT NINE AT 9:00 A.M. ON THURSDAY, MAY 1, 2008. IF THE COURT GRANTS THE REQUEST FOR A HEARING OF ORAL ARGUMENT, A HEARING DATE AND TIME WILL BE SET DURING THAT PERSONAL OR TELEPHONIC APPEARANCE. 18. SIERRA PACIFIC INDUSTRIES
v. MANTLE PC-20070409
(1)
Defendant Mantle’s Motion
to Modify Preliminary Injunction.
(2)
Defendant Mantle’s Motion
to File Records Under Seal. TENTATIVE
RULING # 18: THESE MATTERS ARE CONTINUED TO 9:00 A.M. ON THURSDAY,
MAY 15, 2008 IN DEPARTMENT NINE. 19. COHEN v. PLANK PC-20070572
(1)
Defendant Hodel’s Motion
to Compel Responses to Written Discovery.
(2)
Defendant Hodel’s Motion
to Compel Further Responses to Written Discovery. On April 24, 2008, the Court
received written notice from defendant Hodel/All Points Welding’s attorney,
that the parties are attempting to resolve the discovery dispute and
request that the motions to compel be continued to May 15, 2008, or
to a date available to the Court. TENTATIVE RULING # 19: THE HEARING ON THE MOTIONS IS CONTINUED TO 9:00 A.M. ON THURSDAY, MAY 15, 2008, IN DEPARTMENT NINE. 20. O’BANKS v. O’BANKS PFL-20020742 Motion
for Attorney Fees and Costs. TENTATIVE
RULING # 20: APPEARANCES ARE REQUIRED AT 9:00 A.M. ON THURSDAY, MAY
1, 2008 IN DEPARTMENT NINE. 21. ALL POINTS CAPITAL CORP. v. GULARTE PC-20070285 Judgment Debtor Examination. On January 31, 2008, at a prior hearing on the matter, the Court recalled the bench warrants as to judgment debtors Kathleen L. Gularte and Richard K. Gularte, while retaining jurisdiction over said judgment debtors, and continued the hearing to April 24, 2008 at the letter request of plaintiff’s counsel dated January 29, 2008 which advised that the parties had reached a settlement. At the continued hearing, on April 24, 2008, visiting judge Patrick J. Riley noted that no proof of service had been filed. However, the file shows proofs of service of the orders of examination on both judgment debtors were filed on September 28, 2007. Further, the court recalled the bench warrants but retained jurisdiction over said judgment debtors on January 29, 2008 while continuing the hearing to April 24th. There were no appearances by the parties or counsel on April 24, 2007 so that the Court continued the matter to May 1, 2008 at 9:00 a.m. in Department 9 and ordered the Clerk to contact Plaintiff for status of request for examination. TENTATIVE RULING # 21: APPEARANCES ARE REQUIRED AT 9:00 A.M. ON THURSDAY, MAY 1, 2008, IN DEPARTMENT NINE. |