Strong Mayor, Initial Ruling

Superior Court of California800 Ninth Street, 3rd Floor

Friday, January 15, 2010, 2:00 PM

Department 53

Loren E. McMaster, Judge

V. Carroll, CA, Bailiff

T. West, Clerk

To request limited oral argument on any matter on this calendar, you must call the Court at (916) 874-7858 (Department 53) 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.

NOTICE:

Item 1 05AS01673

VALENTINA BABICH. ETAL VS. WOODLEAF PARTNERS. LP. ETAL

Nature of Proceeding:

Filed By:

Determination of Good Faith Settlement

Rodman, Jordan A.

Cross-defendant Paint Pro's motion for a determination that its settlement with plaintiffs is in good faith is unopposed and granted.

Settlement was reached after negotiations with the special master. Paint Pro is paying $30,000 to plaintiffs in exchange for a release of all claim.

The Court finds the settlement is in good faith and meets the Tech-Bilt standard. The Court will sign the order submitted with the motion.

Item 2 05AS01697

JOSEPH MOHAMED SR VS. CARROLL J ROGERS. ET AL


Filed By:

Hearing on Demurrer (Two Joinders)

Bonotto, Phillip R.

Dropped. The case settled on December 21, 2009.

Item 3 05AS01697

JOSEPH MOHAMED SR VS. CARROLL J ROGERS. ET AL


Filed By:

Motion to Dismiss (Two Joinders)

Chidlaw, Keith D.

Dropped. The case settled on December 21, 2009.

Item 4 2007-00882841-CU-CL

BANKFIRST VS. CHRISTO BARDIS

BANKFIRST VS. CHRISTO BARDIS


Filed By:

Motion for Leave to File a First Amended Complaint

Hofeldt, Tiffany J.

This matter is dropped from calendar.

Item 5 2008-00016336-CU-PA

GLENN S. GUENARD VS. EVANGELINA ANITA YOST


Filed By:

Motion to Compel Attendance at Deposition

Sabo, Rayelle D.

This matter is continued to 1/29/2010 at 02:00PM in this department.

Item 6 2008-00016926-CU-BC

CINDY BISHOP VS. MILLER LAW INC.


Filed By:

Motion for Judgment on the Pleadings

Fayard, Gregory T.

Defendants' motion for judgment on the pleadings as to the cause of action for negligent hiring is denied, but is granted as to the causes of action for fraud. Plaintiff's claims for legal malpractice and breach of contract are not subjects of this motion.

The motion is denied as to the claim for negligent hiring/retention. Plaintiff has pled negligence, first cause of action, in two counts, general negligence (malpractice) and negligent hiring. As these are not separate causes of action and as plaintiff has stated a claim for professional negligence, the motion is denied.

The motion is granted as to the third cause of action for fraud. The alleged false representations are the terms of the contract. Plaintiff states these terms were false but she does not state what the true facts were. The conclusory statement that defendants knew the terms of the contract were false is insufficient to support this cause of action. Plaintiff has alleged defendants intended her to rely but she does not allege facts to support reliance. Plaintiff has not alleged who made the representations. She attributes all misrepresentations to all defendants.

The motion is granted as to the fourth cause of action for negligent misrepresentation for the same reasons it is granted art to the third cause of action (fraud). With exception of allegations regarding reliance, this cause of action is virtually identical to the third cause of action.

The motion is granted as to the fifth cause of action for promissory fraud. Here plaintiff alleges that defendants indicated or implied a lengthy list of promises. She does not allege which defendants made which promises or which promises were not kept.

Plaintiff may file and serve an amended complaint by January 25, 2010. Responsive pleadings shall be filed and served 10 days thereafter, 15 days if service

is by mail.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.

Item 7 2008-00020594-CU-PN

MARK WINSLOW VS. JACQUELIN L. RUSSELL


Filed By:

Motion for Summary Judgment and/or Adjudication

Aldrich, J. Thomas

Defendants' motion for summary adjudication/judgment judgment is granted.

Defendants' objection to the entire declaration of Michellel Winslow is sustained. The declaration is incomplete. CCP 116.130. Defendants' objections to the statement in plaintiffs' declarations that "there was not an actual mold inspection performed as requested by me" is sustained. The statements lack personal knowledge. Assuming plaintiffs requested an inspection, they have no personal knowledge that one was performed and they are silent on whether they requested a report and from whom they requested an inspection. Defendants' hearsay objections to statements in the declaration of plaintiff Marl Winslow are sustained.

Plaintiffs have not addressed the causes of action for professional negligence, negligent infliction of emotional distress, and negligence in their opposition. Therefore the motion is granted as to these claims.

The causes of action for breach of fiduciary duty and fraud are barred by the applicable statutes of limitations.

Plaintiffs purchased a home in May 2004 and defendants represented both buyers and sellers. Plaintiffs hired Auteri Home Inspections to inspect the property on May 13, 2004. He found areas of possible mold and advised plaintiffs to have a mold inspection. The sellers agreed to remove the stained areas and have the walls repaired.

Defendants also advised plaintiffs to get an inspection. Plaintiffs signed a Buyer's Inspection Advisory. Plaintiffs did not get a mold inspection.

Escrow closed on May 28, 2004. Plaintiffs moved in six months after the close of escrow. They alleged that they did not discover mold until September 2007. This action was filed in August 2008.

The cause of action for breach of fiduciary duty is barred by the two year statute of limitations. The statute runs from the time negligence was discovered or should have been discovered. Field v Century 21 Klowden-Forness Realty (1998) 63 Cal.App.4th 18, 25. Plaintiffs claim defendants breached their duty by allowing escrow to close without a mold inspection. Plaintiffs knew or should have known no mold inspection was performed. They were told to obtain an inspection but they did not. They signed the Buyers Advisory telling them to get an inspection and they were told by defendants they could have any inspection. They did nothing.

Plaintiffs' cause of action for fraud is barred by the three year statute of limitations. Plaintiffs argue that the statute does not begin to run until discovery. But plaintiffs have not shown they could not with reasonable diligence have discovered the alleged fraud three years prior to August 2008. Silver v Watson (1972) 26 Cal.App.3d 905, 911.

As discussed above, plaintiffs had ample opportunity to obtain a mold inspection before close of escrow. In opposition they argue that defendants misled then when they stated everything was fine. Sellers had promised to paint the walls. The letter from defendant Russell states a portion of wall was removed and painted and it was fine. It does not state everything was fine and does not make any statements regarding g alack of mold. If this was a misstatement, plaintiffs would have discovered it if they had had a mold inspection prior to close of escrow.

The only evidence of mold is from the Geomatrix report dated September 14, 2007. It does not state how long the mold had been there. It also notes that the levels inside the house were less than 40% of those outside and the airborne particles are not considered unusual. Any causal connection between plaintiffs' alleged illnesses and mold is attenuated at best.

Plaintiffs request for leave to amend is denied. Defendants have challenged the sufficiency of the evidence, not the sufficiency of the compliant. Plaintiffs have not pointed to any evidence, nor set forth any discussion, from which the Court could conclude that they could point to admissible evidence showing how they could amend the complaint to overcome the evidence submitted by defendants.


Item 8 2008-00024753-CU-WT

HAROON KHALIL VS. CONTAIN A WAY INC.


Filed By:

Motion for Summary Adjudication

Leggieri, Michael G.

This matter is dropped from calendar. This case has settled.

Item 9 2009-00056193-CU-BC

ROGER LEASURE VS. ELLWOOD L. JONES


Filed By:

Hearing on Demurrer

Shaffer, Bruce L.

Dropped. Plaintiff will be filing an amended complaint by the time of the hearing.

Item 10 2009-00056193-CU-BC




Filed By:

Motion to Strike

Shaffer, Bruce L.

Dropped. Plaintiff will be filing an amended complaint by the time of the hearing.

Item 11 2009-00065404-CU-MC

BILL CAMP VS. THE CITY OF SACRAMENTO


Filed By:

Motion for Preliminary Injunction

Miadich, Richard C.

Although the Court believes that the time period for any required disclosure has already passed*, it nevertheless discloses that in 2005, a committee was formed to oppose a threatened recall of the Court by a private interest group. that committee, initially chaired by the late Hon. Robert Puglia, retired Presiding Justice of the Court of Appeal, retained Lance Olson, Esq., whose law firm is representing Plaintiff herein, as Treasurer for the Committee. The Court did not participate in the composition of the committee, the retention of Mr. Olson as Treasurer, or any compensation arrangements._______________________________* See Final Report of the Commission on Impartial Courts, Recommendation 31, and the proposed amendment of Canon 3E(2) of the Canons of Judicial Ethics at page 38 of that report. See also CJA Ethics Committee Formal Opinion No. 60.

* * * * *

Plaintiff Bill Camp’s Motion for Preliminary Injunction is granted.

Moving party has failed to include notice of the tentative ruling system in the notice of motion in compliance with C.R.C., Rule 3.1308 and Local Rule 3.04(D). Local Rules for the Sacramento Superior Court are available on the Court’s website at <http://www.saccourt.ca.gov/local-rules/local-rules.aspx>Counsel for moving party shall give notice of the tentative ruling system to opposing parties forthwith.

Plaintiff seeks an order enjoining defendants City of Sacramento and the Sacramento City Council, and all of their agents, from taking any and all actions in the furtherance of presenting the initiative measure entitled "Government Reform and Accountability Act of 2009" (the "Strong Mayor Initiative" or "SMI") to the voters until a final adjudication is made as to the legality of submitting that measure to the voters, on the grounds that the SMI is an unconstitutional effort to revise the Sacramento City Charter by initiative.

Defendant Hiltachk opposes the preliminary injunction. Defendant City of Sacramento takes no position on whether the proposed SMI is an amendment or a revision to the City Charter, but requests the Court to decide the merits of the dispute now, to avoid negative consequences and the expenditure of funds if the initiative is deemed invalid after the June election is held.

Plaintiff’s Request for Judicial Notice is granted.

Plaintiff’s Objections to Thomas W. Hiltachk Declaration , Exhibit C are sustained, the remainder are overruled.

Summary of the Facts

On August 6, 2009, the City Clerk informed the City Council that the SMI had obtained a sufficient number of signatures to qualify for the ballot. The City Attorney advised the City Council that it had a duty to present it to the voters. The City Council voted to place the SMI on the June 8, 2010 ballot.

The SMI proposes to completely overhaul the structure of city government currently set forth in the Sacramento City Charter ("Charter") by replacing the existing "council-manager" form of city government with a "strong mayor" form.

Whereas the Charter currently vests "all powers of city government" in the City Council (of which the Mayor is a member), the SMI would establish a separate executive branch of city government headed by the Mayor, who would possess all executive powers and duties formerly vested in the City Council and delegated by the Council to the City Manager's office.

The SMI would also grant the Mayor new and additional powers over the legislative affairs of the City. Whereas the Charter currently provides that the Mayor shall have no veto authority, the SMI would provide the Mayor with authority to veto all legislative enactments by the City Council and, until the election of a new ninth City Council member, would permit the Mayor to cast a vote as a member of the City Council against overriding any such veto.

The SMI would further diminish the legislative authority currently vested in the City Council by providing the Mayor with nearly autonomous authority over enactment of the City budget.

The City Attorney advised the City Council in Sept 2009 that the SMI was likely an unconstitutional attempt to revise the Charter because it was not proposed in accord with the procedures set forth in sec. 3 of Art. XI for charter revisions. The City Council has nonetheless placed it on the June 2010 ballot in accord with the Elections Code requirements for qualified initiatives.

Legal Standard for Issuance of an Injunction

In deciding whether to issue a preliminary injunction, a court must weigh two "interrelated" factors: (1) the likelihood that the moving party will ultimately prevail on the merits and (2) the relative interim harm to the parties from issuance of the injunction. The greater the plaintiff's showing on one, the less must be shown on the other to support an injunction. Butt v. State of California (1992) 4 Cal.4th 668, 677-678. A preliminary injunction may not be granted, regardless of the balance of interim harm, unless it is reasonably probable that the moving party will prevail on the merits. San Francisco Newspaper Printing Co. v. Superior Court (1985) 170 Cal. App. 3d 438, 442.

Likelihood of Prevailing on the Merits

This case is one of first impression.

This case turns on whether the SMI is a revision or amendment of the City Charter. The Court finds that Plaintiff has shown a likelihood of prevailing on the merits.

Although the State Constitution allows for amendment by initiative, it prohibits direct presentation of state constitutional “revisions” through the initiative process. Cal Cost, Art. XVIIII, § 3. Section 3 provides that voters may propose an “amendment” by initiative, but a constitutional “revision” must be proposed by the Legislature, upon two thirds vote of both houses to a general election of the voters or a constitutional convention. Cal Const Art. XVIII, § 2.

The California Supreme Court has distinguished state constitution “amendments” which are the proper subject of an initiative, from constitutional “revisions” which are not the proper subject of an initiative. The analysis of whether a change to the constitution is an “amendment” or a “revision” may be based on either quantitative or qualitative effects. Strauss v. Horton (2009) 46 Cal. 4th 364, 427.

The Supreme Court has explained that the reason why initiative measures that constitute revisions are barred from being placed on the ballot. [“[T]he revision provision is based on the principle that ‘comprehensive changes' to the Constitution require more formality, discussion and deliberation than is available through the initiative process.” Legislature v. Eu (1991) 54 Cal.3d 492, 506.

Moving party plaintiff asserts that the SMI is not simply an “amendment” of the

city charter, but a “revision” of the city charter, which is a change in the basic structure of government or in the manner in which power is allocated among the various branches of government, and thus violates the California Constitution, Art. XI § 3(a).

The California Constitution authorizes a city to adopt a charter for its self government. Cal Const, Art. XI § 3(a) Cal Const, Art. XI § 3(b) provides that a the governing body or charter commission of a city may propose a charter or “revision”. However, an “amendment” or repeal may be proposed by initiative or by the governing body.

Subsection (c) provides that: “An election to determine whether to draft or “revise” a charter and elect a charter commission may be required by initiative or by the governing body.”

This case is one of first impression, as no California case has applied the “amendment” versus “revision” analysis to City Charters, under Cal Const, Art. XI § 3.

Here, in the absence of other guidance from the appellate courts, the Court applies the same analysis that the Strauss case applied. The Supreme Court has affirmed “the rule that when a term has been given a particular meaning by a judicial decision, it should be presumed to have the same meaning in later-enacted statutes or constitutional provisions.” Richmond v. Shasta Community Services Dist. (2004) 32 Cal. 4th 409, 422. This Court is not persuaded by the defendant Hiltachk’s contention that Strauss is inapplicable here, because the “revision” and “amendment” analysis

only applies at the state government level, not to the local level. While this Court is not required to follow the analysis that the Supreme Court applied, the Court chooses to so. It appears to the Court that the principles of law that apply to initiative measures proposed to be placed before the voters of the state regarding state legislation, should also apply to initiative measures proposed to be placed before the voters of the city regarding city legislation.

Qualitative

Plaintiff asserts that the SMI is not the product of the public process of an elected charter commission, as required for revisions, but was drafted by a small number of private persons, without affording the public any opportunity to for deliberation and debate to shape the changes proposed, before the public votes on the SMI. An initiative such as the SMI that directly proposes revisions is an end-run around the process prescribed by the state constitution prescribes a specific process and is not constitutionally permitted.

In Strauss v. Horton, supra, 46 Cal. 4th 364, 427, the Supreme Court looked to its prior decisions to reaffirm that a measure constitutes a qualitative constitutional “revision”, if it “substantially alter[s] the basic governmental framework” or makes “a sweeping change . . . in the distribution of powers made in the organic document.” Strauss, supra, 46 Cal. 4th 364, 441, 433. Quantitatively, a measure will constitute a revision if it proposes numerous changes to the entirety of an organic document.

There is no dispute between the parties that the adoption of the SMI would change the structure of the City government provided for in the Charter from the current council-manager form to a strong mayor form of municipal government.

Moving party contends that the complete restructuring of the Sacramento City government proposed by the SMI, would constitute a charter “revision” under the Supreme Court analysis of Strauss.

If the SMI were enacted, the existing branches of city government would be completely restructured, creating a separate executive branch of government headed by the Mayor, and transferring all executive authority formerly held by the City Council and the City Manager to the Mayor. The Mayor shall appoint, discipline and remove all the Charter officers - City Manager, City Clerk, City Treasurer, City Attorney.

The legislative authority of the City Council would also be altered, with the Mayor having veto authority over all ordinances passed by the City Council, including retaining the authority to cast the deciding vote against any vote to override such a veto, until the newly created ninth City Council seat is filled in 2011 or 2012.

The Mayor would be given almost all of the budgetary authority currently vested in the City Council. The Mayor would propose the City budget, and solely determine what information be provided by City departments to assist in the preparation of the budget. Overriding the budget would require six votes of the City Council, and again the Mayor could cast a vote against override until the ninth Council seat is filled. In case of an impasse between the Mayor and the Council, the budget for the new fiscal year would be deemed automatically approved without a vote by the Council, reducing any incentive the Mayor would have to work cooperatively with the City Council. This control over the City’s financial affairs is a further qualitative revision to the Charter

under Strauss.

In opposition, defendant Hiltachk argues that the proposed changes constitute an amendment, not a revision of the charter. He asserts that the transfer of powers of appointment is only from the City Manager to the Mayor, not from the City Council.

However, the Charter currently grants all powers to the Council, which delegates some powers of daily management to the City Manager, while the Council retains ultimate power over the executive function, including the power to appoint and remove the City Manager.

Hiltachk contends that the SMI would transfer the power of appointment from the City Manager to the City Mayor, and is properly accomplished by an amendment, not a by a revision of the charter.

Hiltachk relies upon Cal Const, Art. XI § 5 (b) contending that it grants authority, to provide in a city charter or by amendment thereto, for the “manner” of electing or appointing municipal officers.

However, Art. XI § 5 expressly states it is subject to the restrictions of this article, which includes the procedures set forth in Art. XI § 3, distinguishing a “revision” by the governing body or charter commission of a city from an “amendment” or repeal by initiative.

“[E]ven a relatively simple enactment may accomplish such far reaching changes in the nature of our basis governmental plan as to amount to a revision. . ..” Raven v. Deukmejian (1990) 52 Cal.3rd 336, 351-352. The SMI, if enacted, would clearly change “the nature of . . .[the City’s] governmental plan.”

Quantitative

The number of Charter articles changed, added or deleted by the SMI (nine of the 19 Articles, 45 of the Charter’s 151 sections) should be deemed a quantitative revision, and another reason why the SMI is a revision and not merely amendment.

Relative Interim Harm To The Parties

Plaintiff as a resident and taxpayer would suffer irreparable harm by the continued expenditure of City staff time and financial resources in presenting SMI to the voters.

The City asserts that there is harm to the election system by the presence of an invalid measure on the ballot, which confuses and frustrates the voters, and denigrates the legitimate use of the initiative system.

The City will incur direct costs, if judicial resolution is deferred until after the election, as the SMI is the sole measure on the June 8, 2010 ballot, and the cost to the City of the election will be approximately $104,000, in difficult financial times.

Further, there will be operational and practical harms from proceeding with the election prior to resolution of the action, as there will be uncertainty as to the Mayor’s role on the City Council, labor and employment uncertainties, uncertainty in

contracting, issues regarding the creation of the ninth council district, empty seats on board and joint powers authorities and uncertainty about settlement authority.

By contrast the City would suffer no harm if an injunction were granted, as it would not be required to expend staff and financial resources on an unconstitutional effort to revise the Charter. If the Court determines that the SMI can lawfully be submitted to the voters, it can be done at a subsequent election. Election Code § 9255.

The balance of the hardships weighs in favor of the issuance of an injunction, pending determination of the merits of this action.

A proposed measure may be subject to preelection judicial review or instead of considered by a court only after the measure has been submitted to the voters and the election has been held, where the measure is not legislative in character or because it amounts to a constitutional revision rather than an amendment. Costa v. Superior Court (2006) 37 Cal. 4th 986, 1005.

Because SMI is an initiative, and not a proposal by the City Council or an elected charter commission, the City must be enjoined from presenting it to the voters on the June 2010 ballot.

Undertaking

On granting an injunction, the court must require an undertaking on the part of the applicant to the effect that the applicant will pay to the party enjoined any damages, not exceeding an amount to be specified, the party may sustain by reason of the injunction, if the court finally decides that the applicant was not entitled to the injunction. C.C.P. section 529. Here, proof of an undertaking in the amount of $1,000 shall be provided by the plaintiff.

Ruling

The Court recognizes the right of the people to vote on initiative measures. The Court does not lightly dismiss such, and has taken this very important right in consideration in ruling on this matter. However, as numerous decisions of the California Supreme Court have explained, "although the initiative process may be used to propose and adopt amendments to the California Constitution, under its governing provisions that process may not be used to revise the state Constitution. (Citations omitted.)” Strauss v. Horton (2009) 46 Cal. 4th 364, 386. The same legal principle should to be applied to revisions to City charters.

In reaching this decision the Court has relied on various opinions of the California Supreme Court cited herein in order to determine whether this proposed initiative is a revision or an amendment to the City Charter. As noted above, such analysis inexorably leads to the conclusion that the proposed initiative process a revision to the City Charter, and as such is not properly placed on the ballot for a vote of the people. See Strauss v. Horton, supra, 46 Cal.4th at 386, and cases cited therein.

`The motion for preliminary injunction is granted.

Moving party shall submit a formal order for the Court's signature, pursuant to C.R.C., Rule 3.1150.

Item 12 07ED58165

STATE OF CALIFORNIA VS. DAVID J. PADILLA


Filed By:

Notice of Hearing on Claim of Exemption

Pitts, M.

The claim of exemption is denied.

The court is without jurisdiction to grant an exemption where, as here, the debt is incurred for the "common necessaries of life." CCP section 706.051(c)(1); J.J. MacIntryre Co. v. Duren (1981) 118 Cal.App.3d Supp. 16. It is presumed that wrongfully obtained unemployment insurance payments were used for the necessities of life. The Judgment Creditor, however, will accept less than the maximum allowable amount.

One hundred ten dollars per pay period or $220.00 per month shall be withheld. Any amounts retained in excess thereof are to be returned to the Judgment Debtor.

Item 13 2008-00002623-CL-PL

RESIDENCE MUTUAL INSURANCE COMPANY VS. ELLIOT HOMES INC.


Filed By:

Motion for Summary Judgment

Harmata, Donald D.

Cross defendant Pierce Plumbing's motion for summary judgment is granted.

Elliott made a claim with its insurer, Residence Mutual for after damage. Elliott paid the claim and then filed this action for subrogation against Elliott and Robert Manufacturing. It later added Pierce who installed the pipes as a Doe defendant. There were no allegations in the complaint that Pierce was negligent. Elliott then filed its cross-complaint for indemnity against Pierce based on the indemnity clause of the subcontract. Also named as cross-defendants were CJC Enterprises and D&D Supply.

Residence settled its claims on May 4, 2009. CJC paid $2,000 and D&D paid $1,500. No payment was made by Elliott or Pierce. The complaint against Elliott was dismissed. Elliott continues to pursue its cross-complaint for indemnity against Pierce.

As Elliott paid nothing for dismissal of the complaint, there is nothing related to that to indemnify. Elliott argues it is entitled to indemnification for its legal costs in defending the complaint. Elliott argues that under Crawford v Weather Shield Manufacturing, Inc. (2008) 44 Cal.4th 541 the duty to defend arises immediately and

before the duty to indemnify is determined.

On June 23, 2009 this Court denied Elliott's motion for summary adjudication of the issue of duty to defend. It found that this duty was not triggered because there were no allegations of negligence on the part of Pierce. The Court stated that Elliott "has not shown that the allegations of the complaint allege a causal connection between the leak and the work of J.R.. Pierce." If there was no duty to defend there is no right to indemnification for costs incurred by Elliott in defending the complaint."

Elliott argues that the cross-complaint exists independently and issues raised there are separate from issues raised by the original complaint and answer. Thus dismissal of the complaint does not affect a party's right to proceed to trial on the cross-complaint. Bertero v National General Corp (1974) 13 Cal.3d 43, 51. However, as the Court stated in its ruling on Elliott's motion for summary judgment: "The duty to defend arises from the allegations of the complaint of a third party against Elliott, not from the allegations of the Cross-complaint." The duty to defend arises from the complaint against Elliott, not the cross-complaint by Elliott. And this Court has previously found that the allegations of the complaint were insufficient to implicate Pierce and trigger a duty to defend.

Elliott's evidence objection to the declaration of Croft on the ground of relevancy is overruled. In any event it is not the basis for the Court's ruling.

Pierce' s relevancy objections to the declaration of Scoffield are overruled but are not the basis of this ruling. The objection to Exhibit E on the ground of hearsay is sustained. The objection to the deposition testimony of Corbo on the ground of hearsay is overruled. The remaining hearsay objections are sustained.

The prevailing party is directed to prepare a formal order complying with C.C.P. §437c(g) and C.R.C. Rule 3.1312.

Item 14 2008-00024605-CL-CL

MIDLAND FUNDING LLC VS. KHANH D. TRAN


Filed By:

Motion to Set Aside

Tran, Khanh

Defendant's motion to set aside the default and default judgment is unopposed and granted. Defendant declares he was never served with the summons and complaint.

Defendant shall file and serve his answer by January 19, 2010.


Item 15 2008-90006215-CL-OE

STATE OF CALIFORNIA VS. CLYNISHA J. FIELDS

STATE OF CALIFORNIA VS. CLYNISHA J. FIELDS


Filed By:


Harris, S.



One hundred dollars per pay period (per month) shall be withheld. Any amounts retained in excess thereof are to be returned to the Judgment Debtor.

Item 16 2008-90020307-CL-OE

STATE OF CALIFORNIA VS. JULIE SMITH


Filed By:


Rogers, K.



Fifty dollars per pay period or $100.00 per month shall be withheld. Any amounts retained in excess thereof are to be returned to the Judgment Debtor.

Item 17 2008-90021147-CL-OE

STATE OF CALIFORNIA VS. DOMITILA R. GOMEZ


Filed By:


Rogers, K.

The Department states it cannot determine Judgment debtor's financial hardship as she did not itemize expenses. Judgment debtor did itemize expenses. The matter was continued to give the Department an opportunity to file an amended opoposition. It has not done so. Therefore the claim is granted in its entirety.

Item 18 2009-00034947-CL-CL

NORTHERN CA COLLECTION SERVICES INC. VS. MABEL STRASSER-KING


Filed By:


Cribb, Steven D.

The claim of exemption is denied. The combined monthly incomes of judgment debtors is $6,967 and their monthly expenses are $5,213. Plaintiff is willing to accept $500.00 per month. That amount may be withheld.

Item 19 2009-00047127-CL-CL

BENEFICIAL CALIFORNIA INC. VS. RABUL NISHA


Filed By:

Motion for Summary Judgment

Paris, Jeffrey A.

Plaintiff's motion for summary judgment is unopposed and granted. Plaintiff has shown by admissible, relevant evidence that defendant is indebted to plaintiff and the debt has not been paid.

The prevailing party is directed to prepare a formal order complying with C.C.P. §437c(g) and C.R.C. Rule 3.1312.

Item 20 2009-00061359-CL-CL

CACH, LLC VS. ALEKSANDR VOROBETS


Filed By:

Motion to Quash Service of Summons

Vorobets, Alla V.

Defendant's motion to quash is denied.

Defendant declares he was not present on the day he was purportedly served, the papers were left on the lawn, there was no summons included, and the physical description given by the process server does not describe him. Defendant does not offer any physical description of himself, only that he is not as described by the process server.

The process server's return shows both summons and complaint were served. The process server's declaration in support of the opposition describes in detail the events surrounding service.

The return of a registered process server establishes a presumption affecting the burden of producing evidence, of the facts stated in the return. Evidence Code section 647.

Defendant has the burden of producing evidence that he was not served and he has not met that burden. His declaration is conclusory and self serving. In short, the

declaration of the process server is more credible.


Item 21 2009-90016139-CL-OE

STATE OF CALIFORNIA VS. JOSE J. RODRIGUEZ


Filed By:


Pitts, M.



One hundred fifty dollars per pay period or $300.00 per month shall be withheld. Any amounts retained in excess thereof are to be returned to the Judgment Debtor.

Strong Mayor, Initial Ruling

Documents

Transcript of Strong Mayor, Initial Ruling