NOTICE
To request a hearing on any matter on this
calendar, you must call the Court at (916) 874-7848
(Department 54) by 4:30 p.m. today. Local rule 31(h). If
no call is made the tentative ruling becomes the order of
the court.
TENTATIVE RULINGS
Department 54
Superior Court of California
800 H Street
Joe S. Gray, Judge
Barbara Baldy, Clerk
R. Sanchez-Jacobo, Bailiff
February 10, 2000, 09:00
ITEM 1 00CS00126 KRISTINA MARIE PIERCE
Nature of Proceeding: EMANCIPATION CLAIM
Filed By: PIERCE, KRISTINA
Appearance Required.
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ITEM 2 97AS06548 JOSE LUIS VALENCIA VEGA, ET AL VS. RICHARD MALLORY, ET AL
Nature of Proceeding: MOTION FOR RECONSIDERATION
Filed By: HACKENBRACHT, MARY E.
The motion for reconsideration is granted. On reconsideration, the
Court denies the changes proposed by defendant as the order submitted by
plaintiffs and signed by the Court tracks the tentative ruling. The
Court notes for the record, however, that plaintiffs' submission of the
proposed order with a heading indicating that it was being submitted by
defendant was improper and did mislead the Court.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 is required, and no further notice of the order is
necessary.
No oral argument will be permitted.
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ITEM 3 98AS00066 RANKIN & RANKIN, INC. VS. L & M CONSTRUCTION, ET AL
* JNP * Nature of Proceeding: MOTION FOR JUDGMENT
Filed By: ROSE, WILLIAM M.
Continued to 02/23/2000
Department 54
February 10, 2000
Page 2
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ITEM 4 98AS02954 IVORY ADCOCK, ET AL VS. DRY CREEK JOINT ELEMENTARY, ET AL
Nature of Proceeding: SUMMARY JUDGMENT
Filed By: WARD, JAMES K.
In its prior order granting summary judgment to defendants in the
Simpson complaint, and granting summary adjudication as to the Adcock
complaint, the Court stated the following causes of action survive:
As to plaintiff Ivory Adcock, the second cause of action for race
discrimination in education against the District, premised solely upon
the allegations of hostile environment contained within paragraphs 18
and 19 of the complaint and the third cause of action for denial of
constitutional rights against the individual defendants, premised solely
upon the allegations of hostile environment contained within paragraphs
18 and 19 of the complaint.
As to plaintiffs Paul and Latanya Adcock, the seventh cause of action
for denial of constitutional rights against the individual defendants,
premised solely upon the allegations of hostile environment contained
within paragraphs 18 and 19 of the complaint. See order of November 23,
1999.
Defendants have moved for summary judgment as to the remaining causes of
action. The District has submitted evidence that no discriminatory
conduct occurred for which it can be held liable, that its conduct, when
it became aware of an incident, was reasonable, and therefore no hostile
environment existed. The individual defendants have submitted evidence
that no discriminatory conduct occurred, therefore there was no intent
to discriminate.
Plaintiffs have argued that discriminatory conduct occurred in violation
of Title VI; a racially hostile environment existed at Antelope;
Antelope was on notice and it failed to adequately respond. Plaintiffs
also argue they were subjected to discrimination because of their race
in violation of 42 U.S.C. 1983.
As noted above, defendants have submitted evidence that no
discriminatory conduct for which they can be held liable occurred. In
response, plaintiffs attempt to create a triable issue of fact stating
that, in regards to the fight in 1995, LeVale, who is black, was
suspended, yet Matt, who is caucasian, was not. The evidence in support
of this assertion comes from the deposition of LeVale, who stated he was
told by Ms. Mekemson on the Saturday after the fight, that Matt had not
been suspended. According to defendants, Matt was suspended the
following week. In response to a question regarding whether LeVale knew
if at any point in time after that Saturday following the fight in fact
Matt was suspended for the fight, LeVale responded "I don't think so."
Asked why he thought so, LeVale responded Matt was not suspended because
he was nonblack, whereas LeVale is black. During a discussion regarding
a meeting on the Tuesday after the Saturday meeting, LeVale again
testified "...he (Matt) had still not been suspended. He just had not
returned to school yet." LeVale's evidence therefore establishes that
Matt had not been suspended as of the Saturday after the Friday fight.
His evidence regarding Matt's still not being suspended as of the
Tuesday meeting has been objected to by defendants. The objection is
sustained, as LeVale has not shown he has personal knowledge as to
whether Matt had been suspended by then. Therefore there is no triable
issue of material fact that Matt was not suspended by the District for
participating in the fight. Declarations of individual defendants,
deposition of LeVale Simpson.
Plaintiffs also mount a legal argument that the school district can be
liable for the actions of Officer Schafer, their agent. They knew or
should have known, and ratified, his discriminatory conduct. Folkerson
v Circus Circus Enterprises, Inc. (9th Cir. 1997) 107 F.3d 754 and Trent
v Valley Electric Association (9th Cir. 1994) 41 F.3d 524. The Supreme
Court has held that a private Title IX action may lie against a school
board under certain circumstances, but only where the funding recipient
is deliberately indifferent to the harassment, of which the recipient
has actual knowledge, and that the harassment is so severe, pervasive,
and objectively offensive that it can be said to deprive the victims of
access to the educational opportunities or benefits provided by the
school. The Court rejected the use of agency principles in a Title IX
action, due to the textual differences between Title IX and Tile VII.
Davis v Monroe County Board of Education, 526 U.S. 629 and Gebser v Lago
Vista Independent School Dist., 524 U.S. 274. The languages in Title IX
and Title VI are similar in the way they prohibit discrimination under
any program or activity and in the way they define program or activity
so as not to include agents. Title VII however, prohibits
discrimination by employers and defines "employers" to include "agents".
42 U.S.C. 2000e(b), 42 U.S.C. 2000d-4a and 20 U.S.C. 1687. The
Court follows the analysis set forth above in analyzing the liability of
the District in this case under Title VI. The evidence is undisputed
that Officer Shafer was not under the control of the District. It is
undisputed that, upon being told that Officer Shafer was taking pictures
of students, Ms. Harshman asked him to stop and he complied. This can
not, under any reasonable interpretation, be deemed deliberate
indifference. Furthermore, it is undisputed that neither the District
nor the individual defendants had notice that any of the discriminatory
conduct alleged in the complaint, paragraphs 18 and 19, had occurred.
Nor is it disputed that none of the individual defendants engaged in any
of the conduct set forth in paragraphs 18 and 19. See declarations of
the individual defendants and Officer Shafer.
Plaintiffs also argue they were deprived of due process, under the
Fourteenth Amendment, since the discriminatory acts of Antelope and its
deliberate indifference to racial harassment deprived Ivory of his
fundamental right to education. Again, however, plaintiffs have not
presented evidence, sufficient to create a triable issue, that the
District engaged in any harassment, or that the District acted in
deliberate indifference to racial harassment.
The motion for summary judgment is therefore granted.
The prevailing party is directed to prepare an order for the court's
signature pursuant to CCP 437c(g). TERA PHARMACEUTICALS v. SUPERIOR
COURT(1985) 170 Cal.App.3d 530,
Department 54
February 10, 2000
Page 3
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ITEM 5 98AS05336 JACK WILLIAMS VS. VAN MANSON PARKER, ET AL
Nature of Proceeding: MOTION TO REOPEN DISCOVERY
Filed By: RADER, RICHARD E.
Dropped.
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ITEM 6 98AS06100 J. ALAN CATES VS CALIF STATE CONTROLLERS
Nature of Proceeding: MOTION TO COMPEL
Filed By: PERKINS, ROBIN K.
The motion to compel the depositions of John Henry, Darlene Hicks and
the person most knowledgeable regarding the EEO investigation is
granted. Plaintiff and defendants are to meet and confer on dates,
times and location.
This minute order is effective immediately. No formal order per C.R.C.
rule 391 is needed, nor is further notice of this ruling required.
***
ITEM 7 99AS00340 RUSSELL LEBARD VS. BEVERLY JOHNSTON, ET AL
Nature of Proceeding: DEFAULT HEARING
Filed By: KINGSBURY, D. REID
Appearance Required.
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ITEM 8 99AS01884 ROSS GORMAN VS. CRAIG CARNEY, ET AL
Nature of Proceeding: MOTION TO FILE AMENDED COMPLAINT
Filed By: MERRITT, ROBERT M.
The motion to file an amended complaint is granted. Plaintiff is to
file and serve his amended complaint no later than Thursday, February
10th, 2000.
This minute order is effective immediately. No formal order per C.R.C.
rule 391 is needed, nor is further notice of this ruling required.
Department 54
February 10, 2000
Page 4
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ITEM 9 99AS03122 MABON KETCHUM VS. SACRAMENTO CITY MUNI. DIST., ET AL
Nature of Proceeding: MOTION TO COMPEL
Filed By: UNIVERSAL, JON D.
Dropped.
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ITEM 10 99AS03156 JENNINGS H. PEWTHERS VS. PAUL BEEN, ET AL
Nature of Proceeding: DEMURRER
Filed By: DIPIETRO, ELAINE P.
The demurrer to the first amended complaint is sustained without leave
to amend for failure to state facts sufficient to constitute any viable
causes of action.
Moving defendants are to prepare a Judgment of Dismissal for the Court's
signature and present it to department 54 no later than Monday, February
14th, 2000.
This minute order is effective immediately. No formal order per C.R.C.
rule 391 is needed, nor is further notice of this ruling required.
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ITEM 11 99AS05886 RHONDA GAWLIK ADAMS, ET AL VS. DIOGENES YOUTH SERVICES
Nature of Proceeding: MOTION TO COMPEL
Filed By: MCHUGH, LAURA C.
The motion to compel arbitration and stay the action is granted. The
arbitration agreement is not procedurally and substantively
unconscionable.
This minute order is effective immediately. No formal order per C.R.C.
rule 391 is needed, nor is further notice of this ruling required.
Department 54
February 10, 2000
Page 5
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ITEM 12 99CS02608 IN RE: RAFAEL A. JIMENEZ JR.
Nature of Proceeding: PETITION FOR CHANGE OF NAME
Filed By: JIMENEZ, RAFAEL ANTHONY JR
Continued to 02/16/2000
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ITEM 13 00CM00002 RPS, INC., ET AL VS. MOORE TRUCKING
Nature of Proceeding: PETITION TO CONFIRM ARB AWARD
Filed By: MANOLI, CHARLES G.
The petition is granted. The arbitration award is confirmed.
Petitioner is to submit a judgment for the Court's signature to
department 54, no later than Monday, February 14th, 2000.
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ITEM 14 98AM01234 ALLSTATE INSURANCE COMPANY VS. RUBY PARRISH, ET AL
Nature of Proceeding: MOTION FOR SANCTIONS
Filed By: BOOSKA, STEVEN A.
Plaintiff's motion for sanctions is granted. The record reveals
defendant has not responded to basic discovery regarding his defenses to
plaintiff's claim, even after being ordered to do so by the Court. If
the answers to the interrogatories had been in plaintiff's favor, then
defendant would have stated he had no facts to support his defenses. In
addition, Admissions were deemed admitted against defendant, which
admissions were in favor of plaintiff. For these reasons, defendant's
answer is stricken and his default is entered. In addition, monetary
sanctions of $403 are awarded to plaintiff from defendant.
This minute order is effective immediately. No formal order per C.R.C.
rule 391 is needed, however plaintiff is to notify defendant of the
Court's ruling forthwith.
Department 54
February 10, 2000
Page 6
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ITEM 15 98AM08792 PEGGY MILBOURN, ET AL VS. RUSTY DUCK RESTAURANT, ET AL
Nature of Proceeding: MOTION TO COMPEL
Filed By: TAKAHASHI, IRENE
Defendant's motion is granted. Plaintiff is ordered to serve full and
complete answers, without objections, to defendant's Form
Interrogatories, set one. Plaintiff is ordered to serve a full and
complete response, without objections, to defendant's Request for
Production of Documents, set one. Plaintiff is also ordered to produce
the documents set forth in the response.
The answers, response and documents are to be served and produced no
later than Tuesday, February 22nd, 2000.
The request for sanctions is denied as the motion is unopposed.
This minute order is effective immediately. No formal order per C.R.C.
rule 391 is needed, nor is further notice of this ruling required.
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ITEM 16 99AM07362 MOLALLA HOLDINGS, INC., ET AL VS. GRAYDON H. LAMB, ET AL
Nature of Proceeding: SUMMARY JUDGMENT
Filed By: HEAD, ANTHONY L.
The motion for summary judgment is denied. There is a triable issue of
material fact as to whether Graydon H. Lamb and Robbye Lamb are
individually liable for the debt. See declarations of Graydon H. and
Robbye Lamb.
Defendants' request for sanctions is denied.
This minute order is effective immediately.
The prevailing party is directed to prepare an order for the court's
signature pursuant to CCP 437c(g). TERA PHARMACEUTICALS v. SUPERIOR
COURT(1985) 170 Cal.App.3d 530,
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Department 54
February 10, 2000
Page 7
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ITEM 17 99AM09730 NUVELL CREDIT CORP. VS. CHRISTINE STREATOR
Nature of Proceeding: WRIT OF POSSESSION HEARING
Filed By: FERTIG, GARY L.
The writ of possession is granted.
A bond will not be required prior to issuance of the writ.
This minute order is effective immediately.
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