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
January 8, 2003, 09:00
ITEM 1 01AS02004 SABRA THOMAS, ET AL VS. BEATRICE DODSON
Nature of Proceeding: MOT FOR ORD SETTING COMPENSATION OF EXPERT WITNESS AT DEPOS
Filed By: ARNOLD, CLAYEO C.
Dropped.
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ITEM 2 01AS05982 TIMOFEY NIKOLAYEV VS. STATE OF CALIFORNIA, ET AL
Nature of Proceeding: MOTION FOR ORDER TERMINATING SANCTIONS
Filed By: WYCKOFF, SCOTT H.
Plaintiff has not responded to defendant's discovery, form and special
interrogatories, requests for production of documents, even after being
ordered to do so by the Court. Plaintiff did not oppose the prior
motion to compel responses, nor has he opposed this motion. If the
answers had been as defendants anticipated, they would have shown that
plaintiff has no evidence, documentary or otherwise, to support his
allegations. It also appears that plaintiff has abandoned this case.
The Court grants defendants motion to terminate this case. The action
is dismissed.
This minute order is effective immediately. No formal order is needed,
C.R.C. rule 391. Defendants to serve plaintiff with notice of the
Court's ruling.
Department 54
January 8, 2003
Page 2
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ITEM 3 01AS07904 DANIEL C. JACUZZI VS. SIERRA WOODCREEK
Nature of Proceeding: MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT
Filed By: LAMON, STEVEN A.
Plaintiff to file and serve his first amended complaint no later than
Thursday, January 16, 2003. The first amended complaint accompanying
the motion will not be separately filed by the Court clerk but will
remain with the motion as an exhibit.
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 02AS00570 ANTHONY SINGLETON VS. CAROLYN NEELY, ET AL
Nature of Proceeding: Motion To Compel
Filed By: CAMPORA, STEVEN M.
Case transferred to Department 53
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ITEM 5 02AS00829 PAMELA J. HARPER VS. CALIFORNIA STATE ASSEMBLY, ET AL
Nature of Proceeding: Summary Judgment
Filed By: MURPHY, DENNIS R.
The Court AFFIRMS its tentative ruling on Defendant Assembly's Motion
for Summary Judgment, or in the Alternative for Summary Adjudication of
Issues from December 20, 2002. Defendant Jon Waldie's Motion for
Summary Judgment on the single cause of action against him for
retaliation is GRANTED.
Defendant Jon Waldie was the Chief Administrative Officer ("CAO") of the
Assembly's personnel system at all relevant times. (MF. 2) Waldie was
the only person with authority to change plaintiff's job
responsibilities, and denies that he changed her job responsibilities
when she returned to work from pregnancy and CFRA leave on March 15,
2001. (MF 21.) Prior to her return to work, on Jan. 15, 2001, plaintiff
asked Waldie for a four day work week with Fridays off. (MF 24.) Waldie
responded by informing her that Chairman Cardoza of the Assembly Rules
Committee had declined her request. (MF 25, 26.) Plaintiff met with
Cardoza on March 21, 2001, and he agreed that she could work four days,
but the day off was to be selected by Waldie. (MF 32, 33.) Waldie
informed plaintiff that best day off would be Tuesday. (MF 34.) Waldie
believed that if plaintiff only worked four days, she would no longer be
Director of the Travel Office, as no other directors or managers under
his supervision worked only part time. (MF 35.) Waldie understood from
Cardoza that the change in plaintiff's Director position had been
approved by Harper. (MF 36.) Plaintiff accepted Tuesdays off on April
10, 2001. (MF 37.) Waldie sent a confirming letter on April 10, 2001.
That letter also informed plaintiff that additional time taken to breast
feed would be unpaid or charged to vacation time. (MF 41.) Waldie
prepared a letter dated April 12, 2001, announcing that Tiffany Creasy
would assume the position of Director of the Travel Department. (MF 52,
53.) When Harper received the April 12, 2001 letter she felt she was
fired, or constructively terminated, although she requested and received
a leave of absence. (MF 54-64.)
Plaintiff has alleged retaliation in violation of Govt. Code sections
12945 and 12940 against both defendants Assembly and Waldie. This
Court addresses only the claim against Waldie, plaintiff's supervisor.
Supervisors may be sued individually under the Fair Employment and
Housing Act (FEHA) for alleged retaliatory acts. Reno v. Baird (1998) 18
Cal.4th 640 is distinguishable on the basis of the difference in the
statutory language regarding retaliation and the reference to "person"
indicating a legislative intent to allow individual liability for
retaliatory acts by supervisors. Reno is not controlling as to a cause
of action for retaliation. Walrath v. Sprinkel (2002) 99 Cal. App. 4th
1237, 1242.
To establish retaliation (Gov. Code, 12940(f)), the plaintiff must
prove she was engaged in protected activity, the employer subjected her
to an adverse employment action, there was a causal link between the
protected activity and the employer's action and the defendant's
proffered nonretaliatory explanation was a pretext for the illegal
consequence. Flait v. North American Watch Corp. (1992) 3 Cal. App. 4th
467, 476, 479; Soldinger v. Northwest Airlines (1997) 51 Cal. App. 4th
345, 367.
There is no dispute that plaintiff's pregnancy leave and CFRA leave was
a protected activity. As to the second element, plaintiff contends that
her loss of the Directorship is an adverse employment action. Strother
v. Southern Cal. Permanente Medical Group (9th Cir. 1996) 79 F.3d 859,
869. The third element, the causal link between the protected activity
and the employer's action in selecting Tiffany Creasey to be the
Director of the Travel Office, is shown by inference, due to the loss of
plaintiff's job title within one month of her return from protected
maternity leave.
However, defendant has articulated a nonretaliatory explanation for the
loss of job title. Waldie testified that he believed that if plaintiff
only worked four days, she would no longer be Director of the Travel
Office, as no other directors or managers under his supervision worked
only part time. (MF 35.) Waldie believed that plaintiff had
voluntarily relinquished her Directorship, in her meeting with Cardoza
about a four day work-week. (MF 51.)
The burden then shifts back to the plaintiff to show that the alleged
explanation is a pretext for impermissible retaliation. Here, the
plaintiff denies that she agreed to relinquish her Directorship in her
conversation with Cardoza. Trent Hager was also present in the meeting
between Cardoza and plaintiff, Hager does not recall any discussion of
plaintiff relinquishing her Directorship, and Hager sent the e-mail to
Waldie confirming that Cardoza had approved the four day work week with
the day off to be selected by Waldie, and the e-mail makes no mention of
the change in the Directorship. (PMF 123-126).
However, neither the testimony of plaintiff nor of Hager as to the
contents of that meeting with Cardoza, negates Waldie's good faith
understanding from his face-to-face conversation with Cardoza, that the
matter had been discussed between Cardoza and plaintiff and plaintiff
had agreed to that change in her job title in her conversation with
Cardoza. (PMF 122.) In the absence of evidence to support plaintiff's
contention that the reasons given by Waldie were pretextural only, the
motion for summary judgment is GRANTED as to Waldie on the sole cause of
action for retaliation.
The prevailing party defendant Waldie is directed to prepare an order
for the Court's signature pursuant to C.C.P. section 437c(g). The
prevailing party plaintiff is directed to prepare an order on the
Assembly's motion for the Court's signature pursuant to C.C.P. section
437c(g).
Department 54
January 8, 2003
Page 3
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ITEM 6 02AS02502 ABRAHAM SUSSMAN VS. JOSEPH GABRIEL IRVINE, ET AL
Nature of Proceeding: Motion To File Amended Complai
Filed By: WAGNER, DARRYL L.
Dropped.
***
ITEM 7 02AS04748 PEGGY MENCHACA VS. JAMES JACOVETTA, ETAL
Nature of Proceeding: MOTION TO EXPUNGE LIS PENDENS
Filed By: KAUFMAN, JAMES J.
Defendants seek to have the lis pendens recorded on August 15, 2002,
expunged. Defendants argue the pleadings fail to contain a real
property claim. C.C.P. 405.31. A review of the first amended
complaint however shows that plaintiff, somewhat inartfully, asks for
specific performance under the contract and seeks to claim the real
property. The motion to expunge on the ground the pleading does not
contain a real property claim is denied. Defendants argue plaintiff
cannot establish the probable validity of her claim and on that basis
seek to have the lis pendens expunged. In support of their argument,
Sandra Jacovetta submits a declaration stating they agreed to sell the
property to plaintiff for $59,000 subject to certain conditions,
including the condition that defendants would do a maximum of $5,000 of
work in repairs on the property. According to Mrs. Jacovetta, the
amount of work was in excess of $50,000, plaintiff could not obtain
financing and in December, 2001, plaintiff " ... agreed that she could
no longer purchase the property and terminate (sic) the agreement." In
response to this evidence, plaintiff, through her attorney, has
submitted documents: a letter notifying her that her loan application
had been approved, but would not be funded until some required
conditions were met; a check showing she paid for the loan application;
and a Good Faith Estimate by a mortgage company of the cost of the loan.
No declaration by the plaintiff was submitted in opposition to the
motion. The documents submitted by the plaintiff are not sufficient to
meet her burden of establishing, by a preponderance of the evidence, the
probable validity of the real property claim.
The motion to expunge is therefore granted.
Defendants seek reasonable attorney's fees and costs for making the
motion. Although the memorandum of points and authorities seeks $6,000
for attorney's fees, $24 for costs, and $7,500 for the wrongful filing
of the lis pendens, no declaration has been filed showing the time and
rate attributable solely to the motion. The request for $7,500 is
denied as it is not authorized by C.C.P. 405.38. Finally, the court
file reflects that $25.30 was the charge for the motion, not $24.00.
Defendants are to file a declaration showing the attorney's fees sought
no later than 9:00 a.m., Wednesday, January 6, 2003, in department 54.
The Court will award reasonable attorney's fees, plus $25.30 costs for
making the motion.
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
January 8, 2003
Page 4
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ITEM 8 02AS04842 CRYSTAL FEAKES VS. MICHAEL NOSEWIGZ
Nature of Proceeding: Motion To Compel
Filed By: SMITH, THOMAS H.
Dropped.
***
ITEM 9 02CS00662 STEPHEN CAPLIS, ET AL VS. JAMES P. CAPLIS, ET AL
Nature of Proceeding: MT TO SET ASDE ORD CHRG JDGMT DEBTR PTNSP INT & FLSRE & SALE
Filed By: ENGLUND, BRIAN M.
The motion to set aside the order of December 4, 2002, as to judgment
debtor James P. Caplis, only, is granted. C.C.P. 473. On
consideration of the opposition, the Court grants the Plaintiff/judgment
creditor Stephen Caplis's motion for order charging judgment debtors'
partnership interests and foreclosure and sale of partnership interests.
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 00AM00118 GAIL REICH VS. CENTURY DOME THEATERS
Nature of Proceeding: Motion To Compel
Filed By: GORDON-CREED, GEOFFREY
Plaintiff Gail Reich is ordered to serve verified responses, without
objections, to defendant Century Theatres, Inc.'s Form and Special
Interrogatories, sets one, no later than Thursday, January 16, 2003.
The request for a monetary sanction is denied as the motion is
unopposed.
The Court notes plaintiff served responses after the motion was filed.
A motion is made when filed and served and the Court rules on the motion
based on the facts existing on the date the motion is made. C.C.P.
1005.5. The Court does not consider the late served responses in ruling
on the motion. Plaintiff may decide she does not have to serve
responses as ordered by the Court since she served responses prior to
the hearing date. She takes the chance however that defendant may not
agree and may file a motion seeking sanctions, including terminating
sanctions, for failing to follow a court order.
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
January 8, 2003
Page 5
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ITEM 11 01AM03876 MONTE CLEMMONS VS. STEVE FERNEA, ET AL.
Nature of Proceeding: Motion To Compel
Filed By: MARINELLI, MATHEW D.
A motion is made when served and filed. C.C.P. 1005.5. The Court
rules on the motion as of the date made. At the time the motion was
made, December 11, 2002, Mr. Clemmons had not responded to defendant Nor
Cal Lumber's Form Interrogatories and Request for Production of
Documents. Mr. Clemmons is therefore ordered to serve responses,
without objections, to Nor Cal Lumber's Form Interrogatories and Request
for Production of Documents, sets one, no later than Thursday, January
16, 2003. Mr. Clemmons has filed a document in response to the motion
in which he states he has forwarded the documents to defendants. If
plaintiff feels he has complied with the Court's order, he need not
re-serve the documents again. He takes the chance however that
defendant may not agree with him and file a motion seeking sanctions
against plaintiff for failing to obey a Court order. Mr. Clemmons'
document does not state whether he has served responses to the Form
Interrogatories.
The request for a monetary sanction is denied as the document filed by
Mr. Clemmons is not an opposition on the merits to the motion.
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 12 02AM03598 CAPITAL ONE BANK VS. JULIE J. MCALLISTER
Nature of Proceeding: MOT FOR ORDER IMPOSING TERMINATING SANCTIONS
Filed By: HUNT, MICHAEL S.
Defendant has not responded to plaintiff's discovery, even after being
ordered to do so by the Court. The Court also notes that the admissions
served on defendant by plaintiff have been deemed admitted by a prior
Court order. It appears to the Court that defendant has abandoned the
defense of this case. The motion for a terminating sanction is granted,
defendant's answer is stricken and her default is entered.
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
January 8, 2003
Page 6
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ITEM 13 02AM04028 CA DEPT OF MANAGED HEALTH CARE VS. INTER MED SERV
Nature of Proceeding: Default Hearing
Filed By: RIDDELL, ELLEN J.
The request to enter defendant's default is granted. A default judgment
against defendant is also granted. The Court will sign the judgment by
default submitted by plaintiff.
***
