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
V. Carroll, Bailiff
February 20, 2003, 09:00
ITEM 1 00AS00542 RICHARD J. FISCHER VS. FAMILIES FOR CHILDREN, INC, ET AL
Nature of Proceeding: Summary Judgment
Filed By: GRAY, RICHARD R.
Plaintiff's objection to DeVere deposition, p.1:14-21, is overruled.
Plaintiff's objection to defendant's reference to the employment
contract is overruled. The opinions of this Court and the Third
District Court of Appeal regarding the unenforceability of the
arbitration provision do not mean that the contract is not otherwise
enforceable and relevant.
The motion for summary adjudication of the second cause of action,
sexual harassment/gender discrimination, is denied. Plaintiff is not
relying solely on his alleged observation of a sexual encounter between
DeVere and Pham for this cause of action. Defendants also argue they
are entitled to judgment as to this cause of action due to the
affirmative defense that FFC exercised reasonable care to prevent and
correct promptly any sexually harassing behavior and the plaintiff
employee unreasonably failed to take advantage of the preventive or
corrective opportunities provided by the employer, or to avoid harm
otherwise. Kohler v Inter-Tel Technologies (9th Cir. 2001) 244 F.3d
1167. Assuming, without deciding, that the affirmative defense is
available in state FEHA case, the defense is only applicable where no
tangible employment action was taken. Kohler, supra, at 1176.
Plaintiff submits evidence he was terminated due to supervisory sexual
harassment, therefore the affirmative defense is not applicable. See
declaration of Fisher. Mackey v Department of Corrections (2003) 2003
DJDAR 1128 is distinguishable. In Mackey, the Court found that
plaintiffs had not shown a concerted pattern of harassment sufficiently
pervasive to have altered the conditions of their employment on the
basis of sex and that Plaintiffs were not themselves subjected to sexual
advances. Mr. Fisher submitted evidence he was subjected to sexual
advances. Mr. Fisher also states he complained to the executive
director, Ms. DeVere. Finally, the "same actor inference" is not
sufficient to carry defendants' burden.
The motion for summary adjudication of the first cause of action,
intentional infliction of emotional distress and the third cause of
action, wrongful termination in violation of public policy, is denied.
Plaintiff has created a triable issue of material fact regarding the
circumstances surrounding his termination, i.e., sexual harassment,
complaints about payroll responsibilities, etc. See plaintiff's
evidence in response to defendants' fact #32 and Fisher declaration.
The motion for summary adjudication of the fourth cause of action,
breach of the implied covenant of good faith and fair dealing, is
granted. Plaintiff admits he was an at-will employee, who could be
terminated with or without cause. His argument that he should not be
terminated to fulfill some unlawful pretext, motivation or purpose
properly belongs to his cause of action for wrongful termination in
violation of public policy, not his contract causes of action.
Furthermore, plaintiff cannot argue that the implied covenant gives him
more rights than his express contract which, as conceded, contained an
at-will provision. Guz v Bechtel National, Inc. (2000) 24 C.4th 317.
Defendants' objections to Henderson declaration:
##1-7 are overruled.
#8 is sustained as to the statements of Mr. Gray and the polygraph
examiner.
Objections to Fisher declaration:
##9, 14 (although the Court notes the deposition testimony is that on
March 8 Mr. Pham submitted receipts to plaintiff), 17, 21, 29 and 30,
sustained.
##10, 11, 12, 13, 15, 16, 18, 19, 20, 22, 23, 24, 25, 26, 27, 28, 31,
32, 33, 34 and 35 overruled.
Plaintiff to prepare an order for the Court's signature pursuant to
C.C.P. 437c(g). Terra Pharmaceuticals v Superior Court (1985) 170
C.A.3d 530. The order should be presented to department 54 no later
than Thursday, February 20, 2003, at 9:00 a.m.
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 20, 2003
Page 2
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ITEM 2 00AS03554 NINA GUTIERREZ, ET AL VS. BEHAVIORAL HEALTH CARE CORP, ET AL
Nature of Proceeding: Motion To Compel
Filed By: RICHARDS, MARVIN E.
The motion is granted, no opposition has been received by the Court.
Plaintiffs Nina Gutierrez, Norma Henderson and Fawn Perry are each
ordered to serve verified responses, without objections, to defendant
BHC Heritage Oaks Hospital's Form Interrogatories, sets one, Request for
Production of Documents, set one and Special Interrogatories, set one,
no later than Friday, February 28, 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 3 01AS00554 WRYMOO RAILROAD HISTORICAL AND EDU SOC ET AL VS. RICK CARTER
Nature of Proceeding: MOTION TO FIX ATTORNEY'S FEES
Filed By: ADLER, GERALD J.
Defendant, having shown he is entitled to attorney's fees pursuant to
Civil Code 1717 and C.C.P. 1033.5(c)(5), is awarded $4,585 from
plaintiff. C.C.P. 1032(a)(4) and (b); C.R.C. rule 870.
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 4 01AS01982 PEOPLE OF THE STATE OF CALIFORNIA VS PACIFIC NORTHWEST ET AL
Nature of Proceeding: Motion To Compel
Filed By: BARCLAY, STEPHANIE N.
The motion to compel the depositions of Mackey and Johnson is granted.
Mackey and Johnson are to appear for their depositions on February 25,
26 and 27, 2003, continuing thereafter until completed.
The State's request for judicial notice is denied.
The State's request for a monetary sanction, under the circumstances
presented, is granted in the amount of $1120.00 against defendants
Mackey and Johnson.
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 20, 2003
Page 3
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ITEM 5 01AS01982 STATE OF CALIFORNIA ET AL. VS. PACIFIC NORTHWEST ENV GROUP,
Nature of Proceeding: MT RE:RECUSAL OF ATTY GEN OFFC
Filed By: KINDOPP, DAVID M.
Upon review of the declarations, exhibits and memoranda of points and
authorities, the Motion to recuse the Attorney General and the Law
Offices of Hans W. Herb is denied. The Court finds defendants have not
met their burden, both factually and legally, of showing the motion
should be granted.
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 6 01AS01982 STATE OF CALIFORNIA, ET AL. VS. PACIFIC NORTHWEST ENV GROUP,
Nature of Proceeding: MOT RE:PROT ORD AND IMP SNCTNS
Filed By: KINDOPP, DAVID M.
Defendants' motion for a protective order and sanctions is denied.
The State's request for judicial notice in connection with its
opposition to the motion for a protective order is denied as to item #2,
but is otherwise granted.
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 7 01AS02748 JOSEPHINE MARTHA STENERSEN, ET AL VS. MANOR CARE, INC. ET AL
Nature of Proceeding: Motion To File Amended Complai
Filed By: SEABRIDGE, WILLIAM B.
Continued to 03/10/2003
Department 54
February 20, 2003
Page 4
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ITEM 8 01AS05904 JESSE HARREL, ET AL VS. ROBERT CHRISTOPHER HENNUMQUICK ET AL
Nature of Proceeding: Default Hearing
Filed By: KELLY, MICHAEL R.
Appearance required. Plaintiffs must dismiss the does from the
complaint prior to obtaining a default judgment.
***
ITEM 9 01AS07418 CITY OF SACRAMENTO VS P&M CIOLI LANDSCAPE CONSTRUCTION ET AL
Nature of Proceeding: Motion To Compel
Filed By: WITTER, BRETT M.
The motion is granted, no opposition has been received by the Court.
Defendant P&M Cioli Landscape Construction is ordered to serve verified
responses, without objections, to the City's Form Interrogatories,
Special Interrogatories and Request for Production of Documents, sets
one, no later than Monday, March 3, 2003.
Since the motion is unopposed, the request for a monetary sanction is
denied.
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 10 02AS01270 LANDMARK FINL GROUP, ET AL VS. EMPLOYEES LIFE CO., ET AL
Nature of Proceeding: Motion For Summary Adjudicatio
Filed By: SEBRANSKY, LORI A.
Continued to 03/28/2003
***
Department 54
February 20, 2003
Page 5
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ITEM 11 02AS03842 JAMIE MARCHAND VS. HOLLAND PRO-GYM, ET AL
Nature of Proceeding: Default Hearing
Filed By: HIGGINS, DENNIS OWEN
The Court notes defendant Holland Pro-Gym has filed an answer which
could potentially exonerate defendant Unisen, Inc. The Court exercises
its discretion pursuant to C.C.P. 579 to not enter a several judgment
at this time. The request for a default judgment is dropped from the
calendar.
***
ITEM 12 02AS04004 CHARLIE J ROSS VS. SEARS ROEBUCK & CO.
Nature of Proceeding: Motion To Compel
Filed By: ANWYL, JAMES T.
The motion is granted, no opposition has been received by the Court.
Mr. Ross is ordered to serve verified responses, without objections, to
defendant Sears Roebuck & Company's Form Interrogatories, set one, no
later than Friday, March 7, 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 13 02AS04058 ANGELO G. TSAKOPOULOS, ET AL VS. SYCAMORE VENTURES LLC, ETAL
Nature of Proceeding:
Filed By:
Appearance Required.
***
Department 54
February 20, 2003
Page 6
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ITEM 14 02AS04544 FAIR POLICITAL PRACTICES COMM VS. SANTA ROSA INDIAN COM.ETAL
Nature of Proceeding: Motion To Quash Service Summon
Filed By: KAZHE, CHRISTINA V.
Continued to 03/06/2003
***
ITEM 15 02AS04912 SONOMA AG ART, LLC VS. STATE OF CALIFORNIA, ET AL
Nature of Proceeding: Demurrer
Filed By: PHILLIPS, JEFFREY M.
Dropped.
***
ITEM 16 02AS07148 JAMES ROBINSON, ET AL VS. NEXTEL OF CALIFORNIA, INC., ET AL
Nature of Proceeding: Demurrer
Filed By: PICKUT, KEVIN
Continued to 03/04/2003
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ITEM 17 02AS07742 JOHNNY L. GRIFFIN III VS CAL-STATE COLLISION REPAIR INC ETAL
Nature of Proceeding: Demurrer
Filed By: MATULICH, STEVEN R.
The demurrer to the second cause of action for fraud/concealment is
sustained. Plaintiff has not alleged facts showing active concealment
or reliance and damages as a result of the concealment. Although
plaintiff asks for leave to amend, he does not state what facts he could
allege which would overcome the deficiencies noted above. 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.
Department 54
February 20, 2003
Page 7
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ITEM 18 02AS07742 JOHNNY L. GRIFFIN, III VS. CAL-STATE COLLISION REPAIR, INC.
Nature of Proceeding: MOTION TO STRIKE
Filed By: MATULICH, STEVEN R.
The motion to strike paragraph 22 is granted without leave to amend.
The paragraph does not bolster plaintiff's allegations regarding
knowledge of falsity and intent to induce reliance and is therefore
irrelevant.
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 19 02CS01544 THE PEOPLE OF THE ST OF CA VS. $934.00 (GODOY)
Nature of Proceeding: MT FOR ORD REQ FOR ADM BE DMD ADM
Filed By: LEONARD, STEPHANIE
The Admissions, set one, served on Ramona Godoy are deemed admitted
unless, prior to the hearing, Ms. Godoy serves proposed responses that
comply with C.C.P. 2033(f)(1). C.C.P. 2033(k).
A mandatory monetary sanction of $202 is awarded to the People from Ms.
Godoy.
This minute order is effective immediately. No formal order is needed,
C.R.C. rule 391. The People are to serve Ms. Godoy with notice of the
Court's ruling.
***
ITEM 20 02CS01544 PEOPLE OF THE STATE OF CA VS. $934.00 IN U.S. CURRENCY,
Nature of Proceeding: SUMMARY JUDGMENT
Filed By: LEONARD, STEPHANIE
Upon the admissions being admitted, the motion for summary judgment is
granted as the admissions show there are no triable issues of material
fact and the People are entitled to judgment as a matter of law.
This minute order is effective immediately. No formal order is needed,
C.R.C. rule 391. The People are to serve Ms. Godoy with notice of the
Court's ruling.
Department 54
February 20, 2003
Page 8
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ITEM 21 03AS00316 JAMES HENRY GRAHAM, JR., ET AL VS. VELKIES A.M. GRAHAM
Nature of Proceeding: Preliminary Injunction
Filed By: MARTORANO, REBEKKA
Continued to 04/10/2003
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ITEM 22 03CS00008 IN RE: IRAN D. SADRIAN
Nature of Proceeding: Petition For Change Of Name
Filed By: SADRIAN, IRAN D.
The Petition for Change of Name is granted.
***
ITEM 23 03CS00116 FREIDBERG LAW CORPORATION VS. JOSEPH F. HARBISON III
Nature of Proceeding: Petition To Compel Arbitration
Filed By: PULLEN, SUSANNA
Continued to 02/28/2003
***
ITEM 24 01AM10212 MARY PHONGMANY VS. KENNY LAI, ET AL
Nature of Proceeding: Motion To Compel
Filed By: LINN, TAMARA J.
Defendant's motion is granted, the Court has not received any opposition
to the motion.
Plaintiff Mary Phongmany is ordered to serve a verified response,
without objections, to defendants Kenney and Betty Lai's Request for
Production of Documents, set one, no later than Monday, March 3, 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 20, 2003
Page 9
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ITEM 25 02AM03200 JAMES HOPKINS, VS. LOUISE TROTTER
Nature of Proceeding: Motion To Withdraw Atty of Rec
Filed By: MINER, LOYAL A. JR.
The motion to withdraw is granted. The Court will sign the order lodged
with the motion. The order will become effective on the date counsel
files, in department 54, a proof of service showing a signed copy of the
order was served on the client. Counsel is to also serve all other
parties who have appeared in the case with a copy of the signed order of
the Court.
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ITEM 26 02AM05748 SAC AREA LEAGUE OF ASSOC. MUSLIMS VS. TONY XITOUHAKIS, AKA
Nature of Proceeding: Motion To Compel
Filed By: SMITH, EDWARD A.
Plaintiffs seek an order striking defendants' answer for failing to
respond to interrogatories and produce documents, even after being
ordered to do so by the Court. If the responses had been as
ancticipated, they would have shown that defendants have no evidence,
facts or documents rebutting plaintiff's claims that defendants are
liable for the damages incurred by plaintiff. No opposition to the
motion has been received by the Court.
The motion is granted. The answer filed by defendants is stricken and
their default is entered.
In addition, a monetary sanction of $$250.30 is awarded to plaintiff
from defendants, jointly and severally.
This minute order is effective immediately. No formal order is needed,
C.R.C. rule 391, nor is further notice of this ruling required.
***
