NOTICE
To request a hearing on any matter on this
calendar, you must call the Court at (916) 874-7848
(Department 54) by 4:00 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 Ninth Street, 3rd Floor
Joe S. Gray, Judge
Barbara Baldy, Clerk
Vivian Carroll, Bailiff
February 3, 2003, 09:00
ITEM 1 00AS07098 TIMOTHY RAY HOPKINS, SR. VS. WESTERN DENTAL SERV, INC.,ET AL
Nature of Proceeding: Summary Judgment
Filed By: PARKER, JAMES C.
Defendants' motion for summary judgment/summary adjudication is
granted/denied as follows:
First cause of action for battery: granted. Defendants have met
their initial burden by producing evidence that plaintiff consented in
writing to the tooth extractions. The burden shifts to plaintiff to
produce evidence raising a triable issue of material fact. Failure to
obtain informed consent is not a battery. Obtaining consent to one type
of treatment and performing a different treatment is battery; failing to
meet a due care duty to fully disclose pertinent information is
negligence, not battery. Cobbs v. Grant (1972) 8 Cal.3d 229, 239-241;
Daum v. SpineCare Medical Group, Inc. (1997) 52 Cal.App.4th 1285, 1313.
Second cause of action for assault: granted. There was no assault.
Third cause of action for intentional infliction of emotional
distress: judgment on the pleadings granted. The salient facts of the
complaint are that Dr. Le unnecessarily extracted plaintiff's teeth,
despite a risk of excessive bleeding due to plaintiff's ingestion of
aspirin, for the purpose of financial gain. No facts are stated from
which an intent to cause emotional distress could be inferred. Upon
examination of the entire record, the Court finds that there is no
evidence suggesting that plaintiff could state a cause of action for
intentional infliction of emotional distress. Therefore, leave to amend
is denied.
Fourth and fifth causes of action for negligence and professional
negligence: denied. Defendant has produced evidence, based on the
opinion of plaintiff's expert, that plaintiff had moderate to severe
peridontal disease for which multiple extractions may be an appropriate
treatment. However, the charge of negligence is not based solely on the
fact that Dr. Le performed multiple extractions, but includes the
additional facts that not all of the extractions were necessary, and
were performed despite plaintiff's recent ingestion of aspirin,
presenting a greater risk of excessive bleeding, and without advising
plaintiff of treatment alternatives. Defendants have produced no
evidence showing that all of the extractions were necessary; that
performing multiple extractions on a patient on aspirin therapy falls
within the standard of care; or that Dr. Le did explain treatment
alternatives prior to obtaining plaintiff's consent to the extractions.
The Court finds that defendants have not met their initial burden, and
the burden does not shift to plaintiff to produce evidence raising a
triable issue of material fact. Defendants' objections to Dr. Fong's
declaration are moot, but would be overruled if plaintiff's evidence had
been considered. Kennedy v. Modesto City Hospital (1990) 221 Cal.App.3d
575 (CCP section 2034 expert witness disclosure requirements do not
apply to motions for summary judgment).
Sixth cause of action for negligent infliction of emotional
distress: granted. Plaintiff does not dispute that this is not an
independent cause of action.
Seventh cause of action for negligent training and supervision:
granted. Plaintiff does not dispute that he has no evidence that would
support this cause of action.
As defendants did not prevail on all causes of action, summary
judgment is denied.
Plaintiff shall submit a formal order complying with CCP section
437c(g) and CRC Rule 391 for the Court's signature.
Department 54
February 3, 2003
Page 2
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ITEM 2 01AS02719 JO ANN MCLEVIS, ET AL VS. MICHAEL P. WHITE, ET AL
Nature of Proceeding: Motion For Summary Adjudicatio
Filed By: ELLIS, MARK E.
Dropped.
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ITEM 3 01AS02784 RONDA DUNN, ET AL VS. KLEIN TESTAN & BRUNDO, ET AL
Nature of Proceeding: MOT FOR PROTECTIVE ORDER/REQUEST FOR ATTY FEES AS SANCTNS
Filed By: KRAMER, PATRICIA
Dropped.
***
ITEM 4 01AS03346 LORI PELLEGRINI VS. QFC HOLDING CORPORATION, ET AL
Nature of Proceeding: Motion To Compel
Filed By: GIBSON, MARK R.
Plaintiff's motion to compel further responses to requests for
admissions is continued on the Court's own motion to March 3, 2003. It
appears to the Court that most, if not all, of the matters in dispute
could be resolved by good faith efforts to meet and confer. Some of the
requests appear to be attempts to entrap the other side, and many of the
objections and responses appear to be evasive. Therefore, counsel are
directed to meet and confer over the items set forth in the CRC Rule 335
statement. Counsel are further directed to file, no later than February
24, 2003, supplemental joint or separate CRC Rule 335 statements as to
any items remaining unresolved and a joint or separate supplemental
declaration setting forth the efforts made to meet and confer.
Department 54
February 3, 2003
Page 3
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ITEM 5 01AS04328 GORDA ORPEN VS. GENERAL MOTORS CORP., ET AL
Nature of Proceeding: Motion To Compel
Filed By: FRANKLIN, BRIAN W.
Dropped.
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ITEM 6 01AS06706 GERALDINE KETELS, ET AL. VS. COLLEGE OAK NURSING, ET AL.
Nature of Proceeding: DEMURRER
Filed By: LEVANGIE, MICHAEL J.
Dropped.
***
ITEM 7 01AS06706 GERALDINE KETELS, VS. COLLEGE OAK NURSING REHAB CENTER,
Nature of Proceeding: MOTION TO STRIKE
Filed By: LEVANGIE, MICHAEL J.
Dropped.
***
ITEM 8 01AS06950 DEBRA EDWARDS VS. JACK-THE-BOX, INC.
Nature of Proceeding: Motion To Compel
Filed By: FARNWORTH, KEVIN G.
Continued to 03/17/2003
Department 54
February 3, 2003
Page 4
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ITEM 9 01AS07568 PETER EDWARDS VS. JOHN DOE PROPERTY OWNERS, ET AL
Nature of Proceeding: Default Hearing
Filed By: PANNETON, JOHN P.
As there are other defendants who have not yet been named, served or
dismissed, the Court exercises its discretion under CCP section 579 to
decline to enter a several judgment.
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ITEM 10 02AS01622 SHAWNA AMARO, ET AL VS. DAVID PAUL BRADLEY, ET AL
Nature of Proceeding: Motion To Compel
Filed By: MEREDITH, JANET M.
Defendants AT&T Broadband Network and David Paul Bradley's motion to
compel plaintiff Shawna Amaro to respond to form interrogatories (set
one) and plaintiff J. Michael Amaro to respond to special
interrogatories (set one) is unopposed and is granted. Plaintiffs shall
serve verified responses, without objection, no later than February 13,
2003.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
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ITEM 11 02AS03098 VICKI HANFORD, ET AL VS. PAC MUTUAL GROUP LIFE INS CO ET AL
Nature of Proceeding: Motion To Withdraw Atty of Rec
Filed By: MELLUISH, RONALD L.
The motion to withdraw is unopposed and is granted. The Court will
sign the formal order submitted with the moving papers.
***
ITEM 12 02AS04028 HOMAN MUSHARBASH VS. S. CURTIS WINTER, ET AL
Nature of Proceeding: Motion To Compel
Filed By: WALTZ, PATRICK J.
Plaintiff's motion to compel responses to form interrogatories (set
one) and request for production of documents (set one) is unopposed and
is granted. Defendants S. Curtis Winter, McCarty, Winter & Sheedy and
McCarty, Winter, Sheedy & Ostling shall serve verified responses,
without objection, no later than February 13, 2003.
Sanctions are denied as the motion is unopposed. CCP section 2023(b)
authorizes monetary sanctions to the extent such sanctions are
authorized by the particular method of discovery. CCP sections 2030(k)
and 2031(l) authorize monetary sanctions only when the motion is
unsuccessfully made or opposed.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
Department 54
February 3, 2003
Page 5
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ITEM 13 02AS04596 STEVEN YBARRA VS. MICHAEL NEWSOME ET AL
Nature of Proceeding: Summary Judgment
Filed By: LEA, ROBERT
Continued to 03/25/2003
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ITEM 14 02AS04640 LEWIS, MILLER & COMPANY, INC. VS. JEFFERY L. JACOBS, ET AL
Nature of Proceeding: MT TO RESCHDLE DATES FOR FILING AND RESP TO AMENDED COMPLNT
Filed By: STOLMAN, MARC D.
Continued to 02/19/2003
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ITEM 15 02AS05098 CINDY HAMPTON VS. ALLIANT INTERNATIONAL UNIVERSITY,ETAL
Nature of Proceeding: Motion To Strike
Filed By: BLAKEMORE, WILLIAM K.
Continued to 03/07/2003
***
ITEM 16 02AS06876 ANTONIO L. CHAVEZ VS. LEXTRON, INC., ET AL
Nature of Proceeding: Demurrer
Filed By:
The demurrers of defendants Stanley and Walker to all causes of
action are sustained without leave to amend for failure to state a cause
of action. Only an employer may be liable for wrongful termination of
employment, and the individual defendants were not plaintiff's employer.
Further, the individual defendants were not parties to plaintiff's
employment contract.
The general demurrer of defendant Lextron, Inc. to the first cause
of action for wrongful termination in violation of federal and state law
is sustained with leave to amend for failure to state a cause of action.
The complaint does not allege that plaintiff exhausted his
administrative remedies, and does not state facts showing that plaintiff
is a member of the classes protected by the statutes alleged, or how
defendants violated those statutes. The special demurrer is overruled.
The general and special demurrers of defendant Lextron, Inc. to the
second cause of action for implied in fact contract are overruled on the
grounds stated.
The general demurrer of defendant Lextron, Inc. to the third cause
of action for breach of the implied covenant of good faith and fair
dealing is sustained without leave to amend for failure to state a cause
of action. This cause of action is duplicative of the first and second
causes of action and is therefore superfluous.
An amended complaint may be filed and served no later than February
13, 2003. Defendant shall respond no later than February 27, 2003.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
Department 54
February 3, 2003
Page 6
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ITEM 17 02AM06566 JAMES HAW, ETAL VS. ALMA G. PACE, ETAL
Nature of Proceeding: Motion To File Amended Complai
Filed By: HAW, JAMES F.
Plaintiff's motion for leave to file amended complaint is unopposed
and is granted. Plaintiff shall file and serve the first amended
complaint no later than February 13, 2003. The Clerk will not
separately file the amended complaint submitted with the moving papers.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
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