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
S. Meeker, Clerk
Vivian Carroll, Bailiff
February 6, 2003, 09:00
ITEM 1 00AS05884 NANCY LANGSJOEN, ET AL VS. DEMMON PARTNERS, ET AL
Nature of Proceeding: Motion For Summary Adjudicatio
Filed By: GUTH RIE, GEORGE A.
The motion for summary adjudication of defendant's affirmative defense
of the statute of limitations as it pertains to plaintiff Nancy
Langsjoen's personal injury causes of action is granted. The Demmon
Defendants have met their burden of showing plaintiff (1) was aware of
her injury, (2) its factual cause and (3) that plaintiff had sufficient
facts to put her on inquiry notice of a negligent cause. Clark v Baxter
Healthcare Corp. (2001) 83 C.A.4th 1048, 1057, citing Jolly v Eli Lilly
& Co. (1988) 44 C.3d 1103, 1109-1114. See defendants' facts ##3 through
6 and evidence cited therein.
Plaintiff's opposition fails to state facts in her opposing separate
statement to create a triable issue of material fact as to the three
prongs noted above.
The Court, in ruling on the motion, has noted the allegations stated in
plaintiff's theory of negligent repair and eighth cause of action for
fraudulent concealment/failure to disclose.
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 6, 2003
Page 2
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ITEM 2 00CS01092 CALIFORNIA INS. EDUCATION PROJECT VS. BILL LOCKYER
Nature of Proceeding: OSC WHY AN ORD NOT BE MADE DECL CA INS ED PROJ DULY WU & DIS
Filed By: MARTLAND, RICHARD D.
Appearance required. No response(s) to the OSC has been filed with the
Court. If no objections are made at the hearing, the order shall be
granted.
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ITEM 3 01AS06300 LEONARD ZERILLI VS, PATRICIA TSUBOKAWA REEVES, ET AL
Nature of Proceeding: Summary Judgment
Filed By: LA VOIE, THERESA M.
Defendant Ruthe Ashley's motion for summary judgment/summary
adjudication is ruled upon as follows.
Defendant's motion for summary adjudication of the first cause of
action, negligence-failure to timely file EEOC claim, is granted.
Plaintiff alleges that defendant negligently failed to timely file an
EEOC claim and, as a result, his federal age discrimination claim under
29 USC section 626 (d) was dismissed. According to plaintiff, the claim
should have been filed within 300 days of the discriminatory act of
January 10, 1997, or approximately November 6, 1997. The claim was not
filed until June 28, 1998. Defendant presents evidence that plaintiff
retained defendant Reeves to represent him in January 1997, and that the
Reeves & Ashley, LLP was not formed until September 1998. Defendant
could not have had an attorney-client relationship with plaintiff in
November 1997 and therefore owed him no duty. Defendant's evidence is
sufficient to shift the burden to plaintiff to produce evidence of a
disputed material fact. Plaintiff has not met his burden. The earliest
evidence that defendant was involved in plaintiff's case was a February
17, 1998 billing entry by defendant Reeves stating that she met with
defendant Ashley for approximately three hours regarding the drafting of
the federal complaint. Such a consultation does not establish an
attorney-client relationship between plaintiff and defendant. Further,
that date is well past November 7, 1997, when the cause of action
accrued. Defendant Reeves' January 2002 letter to her insurance broker
does not raise a triable issue as to when the Reeves & Ashley
partnership was formed. Plaintiff having failed to raise a disputed
issue of material fact, defendant is entitled to summary adjudication of
the first cause of action.
Defendant's motion for summary adjudication of the second cause of
action, negligence-failure to timely file state age discrimination
action, is denied. Plaintiff alleges that defendant negligently failed
to timely file an age discrimination action under Government Code
section 12900 et seq. within one year after FEHA issued a right to sue
letter on January 9, 1998. The Reeves & Ashley, LLP was formed in
September 1998. Even if defendant performed little or no legal work on
plaintiff's behalf between that date and January 10, 1999, when the
cause of action arose, she may be vicariously liable through the LLP.
Defendant's contention that she is shielded from vicarious liability
owing to the provisions of the Uniform Partnership Act, specifically
Corporations Code section 16306 (c) is unfounded. To enjoy the
protection of section 16306 (c), for "acts, errors or omissions," the
partnership must have a "currently effective certificate of registration
issued by the State Bar." Section 16306 (f). It is undisputed that the
Reeves & Ashley, LLP did not have a certificate until October 25, 1999.
The court rejects defendant's contention that the LLP was in substantial
compliance with the statute. Section 16306 (f) is a specific
requirement with which the LLP did not comply in the least.
Defendant's motion for summary adjudication of the third cause of
action, negligence-failure to timely file action for wrongful discharge
in violation of 42 USC section 1983, is granted. Plaintiff alleges that
defendant negligently failed to timely file an action for wrongful
discharge under 42 USC section 1983. According to plaintiff, the action
should have been filed no later than approximately January 9, 1998.
Summary adjudication is granted for the same reasons cited for
plaintiff's first cause of action.
Defendant's motion for summary adjudication of the fourth cause of
action, negligence-failure to timely file state court action, is
granted. Plaintiff alleges that defendant failed to timely file his
state action after his federal action was dismissed without prejudice.
Defendant contends that plaintiff cannot recover for defendant's alleged
negligence because he would not have prevailed on any of the five causes
of action of the underlying complaint. The first and second causes of
action of the underlying complaint were for wrongful discharge in
violation of Government Code section 12653 and wrongful discharge in
violation of public policy. To prevail on a cause of action for
wrongful discharge in violation of Government Code section 12653 or in
violation of public policy, plaintiff must demonstrate a causal
connection between plaintiff's protected activity and the wrongful
discharge. Defendant's evidence shows that plaintiff's protected
activity, his 1987 complaint to the District Attorney charging his
supervisor, Sam Burns, with misappropriation of public funds, occurred
10 years before his termination by William Edgar. Standing alone, the
protected activity is too remote in time to establish the required
nexus. Defendant's evidence is sufficient to shift the burden to
plaintiff to produce evidence of a disputed material fact. Plaintiff
relies solely upon his own declaration. He declares that after his 1987
protected activity he did not receive pay increases and Burns prevented
him from participating in many duties that he had previously performed.
He also states that he believes Burns "orchestrated" his termination
with Edgar. Plaintiff's declaration is insufficient. It does not
establish a connection between Edgar, the individual responsible for his
1997 termination, and his 1987 protected activity. The connection
between the 1987 and 1997 events, then, is purely temporal. In such
cases as little as four months between the protected activity and the
alleged retaliation has been found insufficient to support an action.
See, e.g., Hughes v. Derwinski (7th Cir. 1992) 967 F.2d 1168, 1174-1175
(four months insufficient); Fyfe v. City of Fort Wayne (7th Cir. 2001)
241 F.2d 597, 603 (six months insufficient); Juarez v. Ameritech Mobile
Communications, Inc., (7th Cir. 1992) 957 F.2d 317, 321 (six months
insufficient). Plaintiff would not have prevailed on his first or
second causes of action.
As for the third and fourth causes of action of the underlying
complaint, breach of contract and breach of the covenant of good faith
and fair dealing, the court has already ruled in the underlying case
that public employment is not held by contract but by statute and that
"no employee has a vested right to continue in employment beyond the
time or contrary to the terms and conditions fixed by the law." Summers
v. City of Cathedral City (1990) 225 Cal.App.4th 1047, 1065. Plaintiff
would not have prevailed on his third and fourth causes of action.
The fifth cause of action of the underlying complaint, for
intentional infliction of emotional distress also fails. Neither the
complaint's allegations nor plaintiff's deposition testimony demonstrate
severe emotional distress. Further, defendants' conduct in the
underlying action, as alleged, was not sufficiently outrageous to
support such a cause of action. Plaintiff would not have prevailed on
his fifth cause of action. Because plaintiff would not have prevailed
on any of his five causes of action of the underlying complaint,
defendant is entitled to summary adjudication of the fourth cause of
action.
Defendant's motion for summary adjudication of the fifth cause of
action, negligence-failure to discover evidence vital to proving
plaintiff's case, is granted. Plaintiff alleges that defendant
negligently failed to compel discovery of documents in the federal
action. The complaint was dismissed after the court ruled that
plaintiff had failed to timely file an EEOC claim for age discrimination
and had failed to timely file a section 1983 claim. The alleged failure
to conduct discovery, however, is unrelated to the dismissal as the
complaint alleged facts from which timely EEOC and section 1983 claims
could have been made. Because defendant's complaint was dismissed
before plaintiff could have been damaged by defendant's alleged
negligence in conducting discovery, plaintiff's can show no damages.
Further, the federal case was dismissed on April 30, 1999. The only
evidence of defendant's participation in the case after formation of the
Reeves & Ashley LLP in September 1998 is Reeves' notation in April 1999
that she conferred with defendant regarding plaintiff's opposition to a
motion for reconsideration. There is no evidence that the motion for
reconsideration had anything to do with discovery matters. Plaintiff
having failed to raise a disputed issue of material fact, defendant is
entitled to summary adjudication of the fifth cause of action.
Defendant's motion for summary adjudication of the sixth cause of
action, breach of contract-failure to perform competent legal services,
is granted. Plaintiff alleges that defendant breached a contract with
plaintiff to provide "professional legal and litigation services." The
complaint states that defendant performed services before and after the
Reeves & Ashley LLP was formed. It is undisputed that defendant was not
a signatory of the January 1997 contract between plaintiff and Reeves.
Further, as already noted, the services defendant provided prior to
September 1998 consisted of signing several letters on Reeves' behalf to
continue a hearing and consulting with Reeves for approximately three
hours about drafting the federal complaint. Defendant's participation
in the case, if not de minimus, is insufficient to make her a party to
the January 1997 contract. Her participation in the case after
September 1998 consisted of one conference with Reeves in April 1999,
lasting less than two hours. Even if defendant could be bound by the
January 1997 contract after September 1998, plaintiff offers no evidence
of how defendant breached that or any other contract. Plaintiff having
failed to raise a disputed issue of material fact, defendant is entitled
to summary adjudication of the fifth cause of action.
Having failed to summarily adjudicate each cause of action,
defendant is not entitled to judgment summary.
Defendant's objections 1, 2, 4, 13, 14, 19, 20, 21, 26 and 27 to the
declaration of Leonard Zerilli are sustained. The remaining objections
are overruled. Defendant's objections to the declaration of David Boyce
are overruled. Defendant's objections to the declaration of Bruce
Gregor are sustained. Defendant's objections to exhibits 6, 8, 9, 10,
11, 12, 13, 15 and 16 attached to the declaration of Leonard Zerilli are
sustained. The objections to exhibits 4 and 5 are overruled.
Defendant's objections to exhibits 4, 5 and 6 attached to the
declaration of David Boyce are sustained. Defendant's objection to
exhibit D attached to the declaration of Bruce Gregor is overruled.
Defendant's request for judicial notice is granted.
Prevailing party's counsel shall prepare an order for the Court's
signature, pursuant to CCP section 437c(g) and CRC rule 391.
Department 54
February 6, 2003
Page 3
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ITEM 4 01AS06820 KEVIN WILSON VS. ROBERT DILLON
Nature of Proceeding: Motion To Compel
Filed By: ROSENBERG, SID M.
Plaintiff Kevin Wilson is ordered to serve verified responses, without
objections, to defendant Robert Dillon's Form and Special
Interrogatories, and Request for Production of Documents, sets one, no
later than Friday, February 14, 2003.
The request for a monetary sanction is denied as the motion is
unopposed.
This minute order is effective immediately. No formal order is needed,
C.R.C. rule 391, nor is further notice of this ruling required.
***
ITEM 5 02AS01972 COMPREHENSIVE SECURITY SERV. VS. DOANLD COOPER, ET AL
Nature of Proceeding: Default Hearing
Filed By: PARTMANN, WILLIAM B. III
Appearance required. Plaintiff must dismiss the Doe defendants prior to
obtaining a default judgment.
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ITEM 6 02AS04058 ANGELO G. TSAKOPOULOS, ET AL VS. SYCAMORE VENTURES LLC, ETAL
Nature of Proceeding: OSC Re: Contempt
Filed By: SMITH, DANIEL W.
Appearance Required.
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ITEM 7 02AS04260 TERRI HENRY, ET AL VS. EUGENE SMITH
Nature of Proceeding: Motion To Compel
Filed By: ROSENBERG, SID M.
Plaintiffs Terri Henry and Melado McDonald are each ordered to serve
verified responses, without objections, to defendant Eugene Smith's Form
Interrogatories, sets one, no later than Friday, February 14, 2003.
The request for a monetary sanction is denied as the motion is
unopposed.
This minute order is effective immediately. No formal order is needed,
C.R.C. rule 391, nor is further notice of this ruling required.
Department 54
February 6, 2003
Page 4
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ITEM 8 02AS04852 DANIELLA M. SCALLY, ETAL VS. SPARTAN VILLAGE, LLC.,ETAL
Nature of Proceeding: Motion To Compel
Filed By: ROSENBERG, SID M.
Plaintiffs Daniella M. Scally, Damon M. Haywood and Yeavonne Turner are
each ordered to serve verified responses, without objections, to
defendant James M. Grady's Form Interrogatories, sets one, no later than
Friday, February 14, 2003.
The request for a monetary sanction is denied as the motion is
unopposed.
This minute order is effective immediately. No formal order is needed,
C.R.C. rule 391, nor is further notice of this ruling required.
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ITEM 9 02AS05318 LARRY RIDDLE-MEZA, ET AL VS. SBC PACIFIC BELL
Nature of Proceeding: Demurrer
Filed By: ANDERSON, CAROL M.
The demurrer is sustained. The Court does not have jurisdiction over
the claim for damages. San Diego Gas & Electric Co. v Superior Court
(1996) 13 C.4th 893, Waters v Pacific Telephone Co. (1974) 12 C.3d 1.
Plaintiffs seek leave to amend but do not state what facts they could
allege that would allow them to state a cause of action. Stating they
should be allowed to do discovery in order to see if there are facts
does not meet their burden. The demurrer is therefore sustained without
leave to amend.
This minute order is effective immediately. No formal order is needed,
C.R.C. rule 391, nor is further notice of this ruling required.
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Department 54
February 6, 2003
Page 5
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ITEM 10 02AS06292 RODNEY MATTOS, ET AL VS. HOMEEQ SERVICING, ET AL
Nature of Proceeding: Motion To File Amended Complai
Filed By: MATTOS, RODNEY
The motion is granted. The amended complaint which accompanies the
motion was erroneously filed on January 6, 2003. The amended complaint
will remain with the motion as an exhibit. Plaintiffs are to file and
serve the First Amended Complaint no later than Thursday, February 6,
2003.
This minute order is effective immediately. No formal order is needed,
C.R.C. rule 391, nor is further notice of this ruling required.
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ITEM 11 02AS06638 NEHEMIAH CORP. OF CA VS. DON F. HARRIS, ET AL
Nature of Proceeding: Motion To File Amended Complai
Filed By: WITKOW, BRANDON J.
The motion is dropped from the Court's calendar due to insufficient
notice being given of the motion. The Notice was served by mail on
January 14, 2003, for a hearing on February 6, 2003, giving only 23 days
notice. When Notice is given by mail, 26 days notice must be given.
C.C.P. 1005. Defective notice deprives the Court of jurisdiction to
consider the motion. Lee v Placer Title Co. (1994) 28 C.A.4th 503, 509,
511.
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ITEM 12 02CS01810 TATYANA MALINOVSKAYA VS. CSAA
Nature of Proceeding: MT FOR ORD DIR COMP W/SUBP DCES TCM
Filed By: QUADROS, RANDEL J.
Dropped.
Department 54
February 6, 2003
Page 6
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ITEM 13 99AS04422 JOE T. ORTIZ, ET AL VS. RYDER HOMES OF NRTHRN CA, INC., ETAL
Nature of Proceeding: Motion For Summary Adjudicatio
Filed By: STURDIVAN, SEAN M.
Continued to 04/10/2003
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ITEM 14 99AS04422 JOE T. ORTIZ, ET AL. VS. RYDER HOMES, A CALIF. CORP.
Nature of Proceeding: MT FOR SUMMARY ADJUDICATION
Filed By: FREEMAN, RICHARD W. JR.
Continued to 04/10/2003
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ITEM 15 99AS04676 CASCADES RESIDENTIAL OWNERS ASSO VS. H.C. ELLIOTT INC; ET AL
Nature of Proceeding: Demurrer
Filed By: LAWLEY, ELIZABETH WARDROP
Continued to 02/24/2003
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ITEM 16 96AM00616 JUN HASEGAWA, ET AL VS. LOU M. WILLIAMS, ET AL
Nature of Proceeding: MOTION TO AMEND JUDGMENT TO INCLUDE THE NAME OF JUDG DEBTOR
Filed By: HEAD, ANTHONY L.
The papers filed with the Court show Creditors Trade Association, Inc.
dba (CTA) as the plaintiff. In other papers in the file, either CTA or
Molalla Holdings, Inc., are identified as the assignee of the judgment
creditor. There are no documents in the file showing an assignment to
CTA or any reason to think CTA is the plaintiff. Until the discrepancy
is explained, and the proper papers filed, the Court will not consider
the motion filed by CTA.
Department 54
February 6, 2003
Page 7
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