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
Jeffrey L. Gunther, Judge
Barbara Baldy, Clerk
R. Sanchez-Jacobo, Bailiff
January 7, 2000, 09:00
ITEM 1 98AS03266 NICOLO S. GRECO VS. VALLEY INSURANCE COMPANY, ET AL
* JNP * Nature of Proceeding: MOT. TO STRIKE/COMPEL/FOR SANCTIONS
Filed By: RICHIE, STEVEN L.
Defendant Valley Insurance Company's motion to strike amended answer
to interrogatories is denied. Plaintiff is entitled to serve an amended
answer, and the court is not persuaded that plaintiff deliberately
withheld the identity of the newly identified witness. The Court also
denies defendant's request that plaintiff be ordered to pay for Mr.
Flahavan's deposition. The Court will defer to the trial court for an
appropriate ruling as to whether Mr. Flahavan should be allowed to
testify, given his recent refusals to voluntarily appear for deposition.
Defendant's motion for evidence sanctions precluding plaintiff from
using documents from James Thompson is denied. Mr. Thompson has stated
under oath that he has produced all documents in his possession
responsive to the Court's order. His declaration includes an attachment
of the accounting records sought, which were previously provided to
defendant as an exhibit in plaintiff's opposition to motion for summary
judgment. Although the verification that production was complete
appears to have been needlessly delayed, the Court does not find that
sanctions are warranted.
As to defendant's motion to compel further deposition testimony by
Mr. Thompson, the Court is mindful that an important aspect of trial
preparation is the ability of counsel to observe a witness testify under
the stresses of a deposition. The opportunity to assess credibility and
triability by observing live testimony by key witnesses in a case is
critical to making the determination of whether to proceed to trial or
settle. The inability to evaluate Mr. Thompson during a deposition will
deprive counsel of a fair opportunity to prepare the defense and
prejudice counsel's ability to prepare for trial. If counsel is unable
to adequately prepare for trial because of the witness's inability to
testify at deposition, the witness should not be allowed to testify at
trial. Therefore, the Court rules as follows. The Court will not at
this time compel Mr. Thompson's deposition testimony, as the evidence
establishes that it would be injurious to his health. However, should
Mr. Thompson's condition improve, defendant will be allowed to take his
deposition up to and including seven days prior to trial. In that
event, Mr. Thompson will be allowed to testify. But if Mr. Thompson's
condition does not improve so that he can be deposed within that time
period, he will not be allowed to testify at trial.
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.
Department 54
January 7, 2000
Page 2
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ITEM 2 98AS05558 PHILIP WEBER VS. DIVERSIFIED COLLECTION SERV, INC., ET AL
Nature of Proceeding: SUMMARY JUDGMENT
Filed By: GARDINER, JAN L.
This matter is continued on the Court's own motion to January 12,
1999. The tentative ruling is sufficient notice of the continuance.
***
ITEM 3 98AS05992 RICHARD VAN MUNDELL VS. 7-11 FOOD STORE #14098
Nature of Proceeding: OSC RE: CONTEMPT
Filed By:
Dropped.
***
ITEM 4 99AS00380 CHARMAINE THORNBURG VS. JOAN HARADON, ET AL.
Nature of Proceeding: MOTION FOR JUDGMENT ON PLEADIN
Filed By: BROWN, WILLIAM M.
Defendants' motion for judgment on the pleadings is granted with
leave to amend as all counts alleged in the first amended complaint are
preempted by workers compensation.
The Court declines to consider defendants' LMRA pre-emption
contentions. These contentions were made and rejected by the Federal
District Court in the removal action.
The first count for assault against defendant Haradon does not
allege conduct falling within Labor Code section 3601(a)(1)(injuries
proximately caused by "a physical act of aggression that is willful and
unprovoked" not preempted) as plaintiff has not alleged defendant
Haradon specifically intended to cause injury. The allegation that
defendant intended to cause apprehension on the part of plaintiff is not
equivalent to an allegation that defendant intended to cause injury.
Soares v. City of Oakland (1992) 9 Cal.App.4th 1822. The Court notes
that it is aware of the contrary holding in Torres v. Parkhouse Tire
Service, Inc. (1999) 75 Cal.App.4th 1195, but finds the reasoning of
Soares more persuasive in view of the facts of this case. The Court
also finds Herrick v. Quality Hotels, Inns & Resorts, Inc. (1993) 19
Cal.App.4th 1608, on which plaintiff relies, factually distinguishable
and therefore inapposite.
The second count for negligent hiring and retention is pleaded in
conclusory terms, and is sufficient to state a cause of action only for
negligence. Injuries resulting from negligent conduct are compensable
only through workers compensation. Fermino v. Fedco, Inc. (1994) 7
Cal.4th 701, 713-714 (only intentional employer conduct outside the
compensation bargain will support civil action). Plaintiff's reliance
on Labor Code section 3602(b)(1) is misplaced, as plaintiff has not
alleged facts showing defendant Permanente ratified defendant Haradon's
alleged conduct. Compare Hart v. National Mortgage & Land Co. (1987)
189 Cal.App.3d 1420, 1430.
There is authority that Labor Code section 923 can support a civil
action for wrongful termination in violation of public policy. Gelini
v. Tioshgart (1999) 1999 Daily Journal D.A.R. 12929. However, plaintiff
has not alleged she was terminated in retaliation for union activities.
Rather, the conduct and injuries alleged fall squarely within Cole v.
Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, which held that a
claim for intentional infliction of emotional distress based on
retaliation for union activities is preempted by workers compensation.
Even though plaintiff's theory of liability is different (i.e. violation
of statute rather than tort), the Court is persuaded that this count is
governed by Cole.
An amended complaint may be filed no later than January 17, 2000.
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.
Department 54
January 7, 2000
Page 3
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ITEM 5 99AM01124 CALIFORNIA CASUALTY INSURANCE CO VS. CYNTHIA MARIE AYRES
Nature of Proceeding: MOT. THAT MATTERS BE DEEM ADMITTED
Filed By: MIKEL, ROBERT B.
Plaintiff's motion for order that matters be deemed admitted and
documents be deemed genuine is unopposed and is granted. The factual
matters and genuineness of documents set forth in plaintiff's requests
for admissions set no. 1, propounded on defendant Cynthia Ayers, are
hereby deemed admitted.
Mandatory sanctions in the amount of $125 are awarded against
defendant Cynthia Ayers and her attorney, jointly and severally.
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.
***
ITEM 6 99AM02838 TYRES INTERNATIONAL INC. VS. LEE WETHERBEE, ET AL
Nature of Proceeding: MOT. TO COMPEL/FOR ADMISSIONS/SANC
Filed By: BOOSKA, STEVEN A.
This matter is dropped. The Court has no jurisdiction over
defendants as defendants have not yet appeared.
***
