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
Peggy Allen, Clerk
R. Sanchez-Jacobo, Bailiff
January 31, 2000, 09:00
ITEM 1 97AS01656 ANTHONY B. ALLEN VS. RICHARD M. BROWN, ET AL
Nature of Proceeding: MOT. FOR JUDGMENT/ORD FOR SANCTIONS
Filed By: SARLI, ANN E.
The motion to enter judgment pursuant to the terms of the stipulated
judgment is granted. Defendants and cross-complainant are to submit a
judgment to department 54 for the Court's signature no later than
Wednesday, February 2nd, 2000.
The motion for sanctions pursuant to C.C.P. 128.7 is denied as that
code section is not applicable to the circumstances presented here.
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 2 97AS03980 GARY R. DIAS, ET AL VS. CALIFORNIA PRISON INDUSTRY, ET AL
Nature of Proceeding: MOTION TO COMPEL/SANCTIONS
Filed By: LOCKYER, BILL
Dropped.
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Department 54
January 31, 2000
Page 2
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ITEM 3 98AS04002 ROSS WADE VS. UNOCAL CORP, ET AL
Nature of Proceeding: SUMMARY JUDGMENT
Filed By: PEREIRA, PAUL A.
Defendant Onsite has moved for summary judgment as to plaintiff's
complaint and Unocal's cross-complaint. After reviewing the undisputed
evidence, the Court finds Onsite has met its burden of showing there are
no triable issues of material fact and they are entitled to judgment as
a matter of law. The undisputed evidence shows Mr. Harrison was the
special employee of Unocal, and that Unocal was his special employer, at
the time of the accident. The evidence permits only one reasonable
inference and conclusion to be drawn: Onsite is not liable for the
negligence, if any, of Mr. Harrison as his general employer. Since
Onsite has no liability for the actions of Mr. Harrison, then they are
also entitled to judgment as to Unocal's cross-complaint for
indemnification.
The objections to the letters attached to the declarations of Strick and
Sanchez are sustained.
Moreover, even if the letters were to be considered by the Court, they
would not change the outcome as they do not create a triable issue of
material fact as to whether Onsite had any control over Mr. Harrison
sufficient to impose liability on it.
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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ITEM 4 99AS00448 LUKE G. CONLEY, III VS. MICROSOFT CORPORATION, ET AL
Nature of Proceeding: MOTION FOR RECONSIDERATION
Filed By: CONLEY III, LUKE G.
Plaintiff's motion for reconsideration is granted. On
reconsideration, the demurrer of defendant Gates to the second, third
and fourth causes of action is sustained without leave to amend.
Plaintiff has also filed a motion for continuance of and request for
extension of time to file additional opposition to Mr. Gates' motion for
summary adjudication. The motion for summary adjudication has already
been heard by the Court. In opposing the motion for summary
adjudication, plaintiff asked for a continuance and additional time to
file further opposition. The request was denied then and the motion for
summary adjudication was granted. No new facts, circumstances or law
having been presented, the motion is denied.
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.
Department 54
January 31, 2000
Page 3
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ITEM 5 99AS01074 CITY OF LODI VS. UNIGARD INSURANCE COMPANY
Nature of Proceeding: SUMMARY JUDGMENT
Filed By: PAGET, BRIAN R.
Due to the fact the Court has taken the motion for summary judgment
brought by Unigard on its cross-complaint under submission and has
requested further briefing, this motion is continued until Thursday,
February 24th, 2000. The Court is aware of the scheduled trial date of
February 29th, 2000.
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ITEM 6 99AS03626 DOROTHY L. JONES VS. TARGET STORES
Nature of Proceeding: SUMMARY JUDGMENT
Filed By: PLOMTEAUX, AMY M.
Defendant has moved for summary judgment, arguing plaintiff cannot prove
how long the substance was on the floor, therefore she cannot establish
defendant had either actual or constructive notice of the substance that
caused plaintiff to fall; nor can plaintiff establish defendant was
negligent in its use, maintenance or management of its premises.
Defendant's separate statement consists of three facts: 1) plaintiff
has no evidence regarding the length of time the clear substance was on
the floor 2) plaintiff has no evidence regarding the source of the
clear substance that was on the floor prior to the time she fell and 3)
no Target employees or customers were in the area of the incident as
plaintiff approached the toy aisle. These facts are ostensibly
supported by reference to plaintiff's deposition. The evidence however
does not establish that plaintiff does not have any facts to support her
case. It merely establishes that at the time of her deposition,
plaintiff did not know certain things. Plaintiff was not asked if she
had any evidence regarding the length of time the substance had been on
the floor, nor was she asked if she had any evidence regarding the
source of the substance that was on the floor. Defendant's citation of
evidence in support of its third fact only establishes that plaintiff
did not observe any customers or Target employees in the aisle while she
was walking down the aisle where she fell. No evidence has been set
forth in defendant's separate statement as to the length of time that
elapsed between its last inspection of the accident area and plaintiff's
fall; no evidence has been presented in the separate statement as to how
often an inspection is performed by defendant. This evidence would help
demonstrate that defendant did not have constructive notice of the
substance on the floor and that it was not negligent in maintaining the
premises. Defendant cannot shift the burden onto plaintiff merely by
arguing she has the burden of proof at trial to establish the elements
of her claim. Defendant is the party moving for summary judgment. As
set forth above, defendant has also not shown plaintiff cannot prove her
case, thereby shifting the burden to plaintiff to come forward with
admissible evidence sufficient to create a triable issue of fact. Since
defendant has not met its burden of showing it is entitled to judgment
as a matter of law, the motion for summary judgment is denied.
Moreover, even if the Court were to consider the declaration of Mr.
Howarth, which is not referred to in defendant's separate statement, it
would deny the motion. Mr. Howarth's declaration only establishes that
the premises were dry mopped prior to the store opening. No time is set
forth as to when the dry mopping occurred. Mr. Howarth does set forth
that employees were on the premises restocking the store and working in
the toy areas throughout the morning, that the employees are trained and
encouraged to observe and remedy potential hazards and that no Target
employee had notice of the existence of any substance on the floor in
the toy area prior to being told about plaintiff's claim. It is
undisputed the incident occurred approximately 10:45 a.m. According to
plaintiff, the substance was a gel that was not only in the aisle where
she fell, but was also along other aisles. She pointed out the
substance to Mr. Howarth and he saw that it was in another aisle also.
Plaintiff's deposition, pages 118-119, 131. The thick gel was in big
splotches, about two inches wide, intermittently spread on the aisles,
and could be seen when you were looking for it. Mr. Howarth however
stated the liquid was only found in the subject area where the incident
occurred, and there was no other liquid found in any other aisle.
Plaintiff also testified she left a skid mark. Plaintiff's deposition,
page 131. Mr. Howarth stated there was no skid mark. These disputes
create a triable issue of material fact as to whether defendant's
inspection was reasonable under the circumstances, and whether defendant
had constructive notice of the substance on the floor. Finally, a
triable issue of material fact is created by the testimony of Mr.
Howarth that the substance that created the incident was a clear liquid.
As set forth above, however, Plaintiff testified she pointed out the gel
to Mr. Howarth. Also, plaintiff testified the fall caused her to
accidentally urinate on the floor. Mr. Howarth observed it and
commented on it by telling plaintiff "don't worry about it". Therefore
a triable issue exists as to whether the substance Mr. Howarth is
discussing in his declaration, a liquid spill, is the same substance as
the plaintiff testified caused her spill.
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
January 31, 2000
Page 4
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ITEM 7 99AS04412 VERNA J. BANKS, ET AL VS. DONALD M. PERKOVICH, ET AL
Nature of Proceeding: DEMURRER/MOTION TO STRIKE
Filed By: KOHLS, DANIEL V.
The demurrer to the breach of fiduciary duty cause of action is
overruled. The allegations sufficiently allege a breach of undivided
loyalty by defendant to plaintiffs.
The motion to strike is granted. Under the allegations presented, the
damages sought are not recoverable.
Defendant is to serve and file an answer 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.
***
ITEM 8 99AS04424 L.B. GARCIA, ET AL VS. GEORGE KARADANIS
Nature of Proceeding: MOTION TO VACATE JUDGMENT
Filed By: BERRIGAN, ROBERT B.
Dropped.
***
ITEM 9 99AS04488 ALLIED PROPERTY & CASUALTY VS. STEWART LEE ROSEN
Nature of Proceeding: MOTION TO COMPEL
Filed By: WILLIAMS, G. MICHAEL
Plaintiff's motions are granted. Defendant Rosen is ordered to serve
full and complete answers, without objections, to plaintiff's Form
Interrogatories, set one. Defendant is ordered to serve a full and
complete response, without objections, to plaintiff's Request for
Production of Documents, and to produce the documents set forth in the
response. The answers, response and documents are to be served and
produced no later than Thursday, February 10th, 2000.
The request for sanctions is denied as the motions are 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.
Department 54
January 31, 2000
Page 5
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ITEM 10 99AS06154 WANDA MALLARD-WILLIAMS VS. GREGORY S. BREWER, ET AL
Nature of Proceeding: DEMURRER
Filed By: POLLI, DARIN L.
The demurrer by CYA is brought on its behalf only, therefore the
arguments on behalf of the individual defendants, who have not yet
appeared, are disregarded. If and when the individual defendants are
served, they may file their own response to the pleading. At this
point, a demurrer on their behalf is premature.
The demurrer to the second cause of action, on the ground it fails to
state a cause of action as plaintiff failed to exhaust her
administrative remedies, is overruled. The second cause of action
states a claim for ethnic minority discrimination. An investigation of
Plaintiff's claim with the DFEH for race discrimination would uncover
incidents of ethnic minority discrimination, which is encompassed within
the claim for racial discrimination. Since a cause of action is stated
for ethnic discrimination, the demurrer must be overruled, even if it
contains extraneous matter regarding gender discrimination. Defendant
has not brought a motion to strike.
The demurrer to the third cause of action, intentional infliction of
emotional distress, on the basis of worker's compensation exclusivity,
is overruled. Discrimination is outrageous and is conduct where the
employer has stepped out of its proper role, or conduct having a
questionable relationship to the employment. Shoemaker v Myers (1990)
52 C.3d 1, 16.
The demurrer to the third cause of action on the ground their decision
to not hire plaintiff on the basis of race was a simple personnel
management decision and not outrageous is overruled.
The demurrer to the third cause of action on the ground plaintiff did
not present this legal theory to the Board of Control and therefore
failed to exhaust her administrative remedies is overruled. The facts
were presented in the claim submitted, which is all that is required.
The demurrer on the basis C.Y.A. cannot be liable for punitive damages
is overruled. Again, defendant did not bring a motion to strike and
this is not a ground for demurring.
Defendant is to answer 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
January 31, 2000
Page 6
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ITEM 11 99AS06690 DARRI MARQUEZ VS. STATE OF CALIFORNIA, ET AL
Nature of Proceeding: DEMURRER
Filed By: SEIDMAN, BARBARA J.
Dropped.
***
ITEM 12 99AS06774 MARCO GARCIA, ET AL VS. EZEQUIEL RODRIGUEZ, ET AL
Nature of Proceeding: PET. TO COMPEL ARB/MOT. TO STAY
Filed By: SHEA, GLEN C.
Generally, a petition to compel arbitration must be granted if a written
agreement to submit to arbitration an existing controversy is valid,
enforceable and irrevocable, save upon such grounds as exist for the
revocation of any contract. C.C.P. 1281. Respondents have not
submitted any evidence that grounds exist to revoke the agreement for
arbitration. The evidence submitted by respondent consists of a
verified response to the petition. Respondents allege, on information
and belief, that many of the facts stated to them by petitioner were and
are false. See response, paragraphs 6, 7, 8 and 9. Respondents also
allege that prior to the consummation of the agreement, they rescinded
the agreement due to certain actions of the petitioners. See response,
paragraphs 10-14. However, as mentioned above, no evidence has been
presented that the arbitration provision itself was the product of
fraud, mistake or any of the other grounds which exist to revoke a
contract. The arbitration provision provides for arbitration of the
controversy at issue.
The petition to compel arbitration and the motion to stay are therefore
granted.
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
January 31, 2000
Page 7
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ITEM 13 97AM09258 DIANE ARROUES, ET AL VS. ELEANOR VOGEL
Nature of Proceeding: MOTION TO COMPEL
Filed By: WATERS, KIM
Defendant's motions are 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, and to produce the documents set forth
in the response.
The answers, response and documents are to be served and produced no
later than Thursday, February 10th, 2000.
Defendant's request for sanctions is denied as the motions are
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.
***
ITEM 14 99AM00394 JUAN D. FANT VS. WALMART STORES INC.
Nature of Proceeding: MOTION FOR ORDER TO TERMINATE SANCTIONS
Filed By: CALDWELL, CRAIG A.
Plaintiff has been ordered by the Court to appear for his deposition, so
that information regarding his claim, and information which might be
helpful to defendant's defense, might be obtained. Plaintiff has not
appeared for his deposition and information which might have been
helpful to defendant's defense has not been obtained. Plaintiff has not
opposed defendant's current request for terminating sanctions. In fact,
plaintiff has disappeared and cannot be located, such that service of
motions have been made on the Clerk of the Court. The Court agrees with
defendant that plaintiff's refusal to participate in discovery, and his
refusal to apprise either the defendant or this Court with his address
or whereabouts, mandates that this action be dismissed. The motion for
terminating sanctions is therefore granted and this case is ordered
dismissed.
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
January 31, 2000
Page 8
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