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 10, 2003, 09:00
ITEM 1 00AS00602 RAJ SINGH VS. U SAVE RENTAL, ET AL
Nature of Proceeding: MOTION TO DETERMINE JURISDICTION
o Filed By: SINGH, RAJ
Plaintiff's motion to determine jurisdiction on Pacific Bell is
dropped from calendar. The motion is not an authorized motion under
California law.
***
ITEM 2 00AS00602 RAJ SINGH, VS. U-SAVE RENTAL, ET AL.
Nature of Proceeding: MT TO MOD OR REVOKE CRTS RULGS
Filed By: SINGH, RAJ
Although plaintiff's motion to modify or revoke the Court's rulings
since September 1, 2002, relies on CCP section 473, it is in effect a
second motion for reconsideration of the issues decided in the Court's
order of October 15, 2002, granting defendant U-Save Rental's petition
to arbitrate and stay this action pending arbitration. The motion is
untimely and, again, plaintiff has not shown grounds under CCP section
1008 for reconsideration.
Defendant U-Save Rental's request for sanctions pursuant to CCP
section 128.7 is denied as there has been no compliance with the safe
harbor provisions of that statute.
Defendant's request that plaintiff be held in contempt is denied, as
no order to show cause has issued.
However, the Court notes that plaintiff's continued relitigation of
the same issues despite rulings against him may warrant relief under CCP
section 391.1.
Oral argument will not be permitted.
The minute order is effective immediately. No formal order pursuant
to CRC Rule 391 or further notice is required.
Department 54
January 10, 2003
Page 2
________________
***
ITEM 3 00AS05522 ERIC R. DOBRINSKI ET AL VS TOYOTA MOTOR SALES USA, INC ET AL
Nature of Proceeding: Summary Judgment
Filed By: BROWN, DOUGLAS W.
Plaintiffs allege the design of Watt Avenue in conjunction with the
traffic on U.S. Highway 50 and the traffic on Watt Avenue created a
dangerous condition of public property, especially for those motorists
attempting to leave westbound Highway 50 to drive onto northbound Watt
Avenue. The County argues the sole cause of the accident was Grant
Sargent's failure to follow the rules of the road; that it does not have
the authority or responsibility to install signs on Highway 50 which
could have alerted Mr. Sargent to drive more prudently; no sign would
have provided Mr. Sargent with more information than he already knew
about the traffic conditions; and finally, the condition of its property
was not dangerous but was instead a trivial defect within the meaning of
Government Code 830.2.
The accident occurred on Highway 50, which is not owned, controlled or
maintained by the County. Although the County did have an encroachment
permit which allowed it to put up signs on the freeway if construction
activity forced closure of a lane, it is undisputed that on the day of
the accident there was no construction activity which forced closure of
a lane. The Court finds, based on the undisputed facts, that the
condition which plaintiffs claim is dangerous is not a defect or is, at
best, a trivial defect within the meaning of Government Code 830.2.
The objections to plaintiffs' exhibits B, C, and D are sustained.
The objection to the plaintiffs using their complaint as evidence is
overruled. The complaint is used to support the fact that the
plaintiffs are making certain allegations against the County. For that
limited purpose, plaintiffs use of their complaint is proper.
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,
***
Department 54
January 10, 2003
Page 3
________________
ITEM 4 00AS06630 CHRISTOPHER WILKINSON VS. DEPT. OF CONSUMER AFFAIRS, ET AL
Nature of Proceeding: Demurrer
Filed By: HANSEN, CAROLE L.
Continued to 01/21/2003
***
ITEM 5 01AS05976 BRIAN VALENTI VS. DEPARTMENT OF CORRECTIONS, ET AL
Nature of Proceeding: Demurrer
Filed By: PERKINS, STEPHEN W.
Dropped.
***
ITEM 6 01AS05994 SHANNON YOSHIDA, ET AL VS. FELIX MANUEL GARCIA
Nature of Proceeding: Summary Judgment
Filed By: DAVIS, MONTE R. JR.
Defendant Felix Manuel Garcia's motion for summary judgment is
granted. The evidence establishes the following. Moving defendant was
named as a Doe defendant more than one year after the accident in which
he and plaintiff were involved. It is undisputed that plaintiff knew
the identity and facts of the cause of action against moving defendant
at the time the original complaint was filed. This evidence meets
moving defendant's initial burden of establishing a complete defense
based on the statute of limitations, shifting the burden to plaintiff to
produce evidence raising a triable issue of material fact.
Plaintiff has produced evidence that the failure to name moving
defendant in the original complaint was a mistake by counsel, and that
counsel filed the Doe amendment naming moving defendant as soon as he
discovered the error. The Doe amendment procedures do not, however,
function in the same manner as CCP section 473 to grant relief in these
circumstances.
Moving defendant shall submit a formal order complying with CCP
section 437c(g) and CRC Rule 391 and a judgment for the Court's
signature.
Department 54
January 10, 2003
Page 4
________________
***
ITEM 7 02AS01310 JOHN P. HASLER VS. JOHN J. THORNTON, ET AL
Nature of Proceeding: Motion To Compel
Filed By: HILL, JOHN T.
Mr. Thornton is ordered to serve verified responses, without objections,
to plaintiff's Form Interrogatories, Requests for Production of
Documents, and Request for Admissions, sets one, no later than Tuesday,
January 21, 2003.
The request for a monetary sanction is denied as the motion is
unopposed, and plaintiff has not sought to have the admissions deemed
admitted.
This minute order is effective immediately. No formal order is
necessary, C.R.C. rule 391. Plaintiff to serve Mr. Thornton with a copy
of the Court's order.
***
ITEM 8 02AS01738 FEDOR ALEKSANDRO SUHPRODKO VS. WESLEY EDWARD SIEFKER, ET AL
Nature of Proceeding: Motion To Withdraw Atty of Rec
Filed By: LEWIS, DENISE W.
Dropped.
***
ITEM 9 02AS02542 JASON RABINOWITZ VS. GLORIA HARO, ET AL
Nature of Proceeding: Motion To Withdraw Atty of Rec
Filed By: NAKKEN, ROBERT
The motion to withdraw is granted. The Court will sign the order lodged
with the motion. The order is effective on the date counsel files, in
department 54, a proof of service showing the client was served with a
copy of the signed order. Counsel is to serve all other parties who
have appeared in the case with a copy of the signed order.
Counsel failed to provide notice of the Court's tentative ruling system,
as required by Local Rule 3.04(D). An attachment complying with
Local Rule 3.04(D) should be served in addition to the required Judicial
Council forms. Notice of the tentative ruling system is particularly
important in attorney withdrawal motions because the client is not
expected to know the Local Rules. Counsel shall immediately advise the
client of the tentative ruling system, and shall be available in person
or by telephone in the event the client appears at the hearing without
prior request.
Department 54
January 10, 2003
Page 5
________________
***
ITEM 10 02AS02858 JAMES G. ROWDEN VS. THE STATE OF CALIFORNIA, ET AL
Nature of Proceeding: Demurrer
Filed By: TAMBORNINI, KYLE K.
The general demurrer and motion to strike by Mr. Eason to the entire
action and to the fifth cause of action is sustained and granted without
leave to amend. The complaint purports to allege a conspiracy between
Mr. Eason and his clients. The complaint does not allege, nor does the
file reflect, that Mr. Rowden complied with C.C. 1714.10(a). Nor does
Mr. Rowden's opposition show that any of the exceptions to C.C. 1714.10
apply. Based on the ruling above, the Court does not rule on the
special demurrer.
This minute order is effective immediately. No formal order is needed,
C.R.C. rule 391. Mr. Eason to serve Mr. Rowden with a copy of the
court's ruling forthwith.
***
ITEM 11 02AS02998 SIERRA U.S.D., ET AL VS. MADERA CO CMMTTEE ON SCHL DIST. ORG
Nature of Proceeding: Summary Judgment
Filed By: MENNEMEIER, KENNETH C.
Continued to 02/04/2003
***
ITEM 12 02AS03338 MATTHEW NINKE VS. GALT FIRE PROTECTION DISTRICT, ET AL
Nature of Proceeding: Motion For Summary Adjudicatio
Filed By: STEWART, ROBERTA L.
Defendants move for summary adjudication as to plaintiff's two causes of
action on the grounds they are barred by the one year statute of
limitation applicable to each cause of action, plaintiff failed to file
a timely claim pursuant to the Tort Claim Act, and defendants are
immunue from liability pursuant to Government Code 820.2,
discretionary immunity. Plaintiff argues his claims are not barred due
to collateral estoppel and because the time to file his Tort Claim and
the statutes of limitations were tolled while he pursued his
administrative remedy, invoking the doctrine of equitable tolling.
Plaintiff claims he was retaliated against, and not promoted to the
position of Captain, because he made too many complaints regarding
safety issues. Plaintiff applied for a captain position, was
interviewed, and although told he was ranked #1, he was not selected.
On November 18, 1999, plaintiff filed a union grievance, went through
several levels, all of which denied his grievance, then filed a notice
of appeal to arbitration. The arbitration was denied on March 22, 2000,
the attorneys representing the Galt Fire Protection District sending a
letter to Val R. Schiele, the Union representative handling plaintiff's
grievance. Plaintiff states he personally did not receive notice of the
denial of arbitration until he received a letter from Mr. Schiele on
June 28, 2000, informing him all remedies had been exhausted. On
December 6, 2000, plaintiff served a written claim on defendant Galt
Fire Protection District and on December 29, 2000, plaintiff filed a
complaint with the U.S. District Court.
On November 8, 1999, plaintiff spoke with Chief Templeton about the
promotion and was told he would not be promoted because plaintiff
involved himself in things, i.e., safety issues, that were of no concern
to plaintiff. On that date, plaintiff knew his denial of promotion was
wrongful, illegal and done in retaliation for his earlier safety
complaints. Under the Tort Claims Act, plaintiff had six months from
the accrual of his cause of action to file a claim. Six months from
November 8, 1999, is May 8, 2000. Plaintiff did not file his written
claim with the District until December 6 or 7, 2000. Plaintiff argues
the time limit was tolled while he pursued his Union grievance. The
Union grievance was undertaken by plaintiff's Union representative Val
R. Schiele. Plaintiff lost at both Levels I and II and requested
arbitration. Mr. Schiele was notified on March 22, 2000, that the
District was denying the arbitration request. That notification to Mr.
Schiele was notification to plaintiff, although plaintiff argues he was
not personally given notice of the denial of arbitration until he
received a letter from Mr. Schiele on June 28, 2000.
Plaintiff's argument regarding tolling while he pursued his Union
grievance is rejected. In order to invoke equitable tolling, plaintiff
must show that the two claims are identical or substantially similar so
that investigation of the first will place defendant in position to
fairly defend the second. Loehr v Ventura County Community College
Dist. (1983) 147 C.A.3d 1071, 1085. The Union grievance did not involve
the same claims as are brought here. The Union grievance did not
address plaintiff's concerns that he was not promoted due to being an
outspoken member of the department. It involved only the issues of
procedural error in the testing process. As plaintiff testified at his
deposition: "[Mr. Schiele] could not address the reason for it. Could
only address that it happened and should not have happened, procedural
correctness of it. And any other issue related to retaliation or
anything else like that would have to be handled by myself on an outside
situation." Plaintiff's deposition, p. 105:7-106:8.
Even assuming the six month time limitation, and the statutes of
limitations, were tolled while plaintiff pursued his Union grievance,
the tolling ended on March 22, 2000. The claim served on the District
on December, 2000, more than six months later, was still untimely.
Plaintiff argues that Judge Karlton already decided this issue in his
favor in granted defendants' motion for summary judgment in the federal
action. Judge Karlton's comments however are not collateral estoppel as
to this issue. Judge Karlton declined to exercise supplemental
jurisdiction of plaintiff's state causes of action, dismissing them
without prejudice. His comments were not necessary or materal to his
final determination of plaintiff's federal causes of action. Collateral
estoppel does not apply when the first court expressly refrains from
making a final determination as to an issue and when the prior court's
findings were unnecessary or immaterial to its final determination.
Stark v Coker (1942) 20 C.2d 839, Natural Soda Products Co. v City of
L.A. (1952) 109 C.A.2d 440. See plaintiff's declaration and exhibits
attached thereto; Stewart's declaration and exhibits attached thereto.
Both requests for judicial notice are granted.
Defendants' objection to plaintiff's declaration, paragraph 10, is
sustained.
Plaintiff's argument the statute of limitations applicable to his cause
of action for violation of Labor Code 6310(a) is two years pursuant to
C.C.P. 339(2) is rejected. It is conceded that neither Mr. Templeton
nor the District is a sheriff or coroner. The one year statute of
limitations of C.C.P. 340(3) applies. See Romano v Rockwell Int.
(1996) 14 C.4th 479, Barton v New United Motor Mfg. (1996) 43 C.A.4th
1200.
Defendants motion for summary judgment based on discretionary immunity
is denied. Deciding whom to promote to the position of Captain is not a
basic policy decision which has been expressly committed to coordinate
branches of government and as to which judicial interference would thus
be unseemly. Caldwell v Montoya (1995) 10 C.4th 972, 981.
The Court having granted summary adjudication as to plaintiff's two
causes of action, summary judgment is also granted.
This minute order is effective immediately. No formal order is
necessary, C.R.C. rule 391, nor is further notice of this ruling
required.
Department 54
January 10, 2003
Page 6
________________
***
ITEM 13 02AS04948 DARYN ATLEE, VS. VIRGINIA LESTER, ET AL.
Nature of Proceeding: MOTION TO COMPEL
Filed By: WOODS, BRINY
Dropped.
***
ITEM 14 02AS05862 DONIZETTI HALE VS. COUNTY OF SACRAMENTO, ET AL
Nature of Proceeding: Motion For Reconsideration
Filed By: MERIN, MARK E.
Plaintiff's motion for reconsideration is denied.
Plaintiff presents no new or different facts, circumstances, or law,
upon which to reconsider and to modify,amend, or revoke the court's
prior order sustaining the demurrer.
The minute order is effective immediately. No formal order pursuant
to California Rules of Court, rule 391, or further notice is required.
***
ITEM 15 02AS06292 RODNEY MATTOS, ET AL VS. HOMEEQ SERVICING, ET AL
Nature of Proceeding: Motion To Compel
Filed By: KOLB, KLAUS J.
Defendants' motion to compel is granted. Plaintiffs Rodney Mattos and
Tracy Mattos are ordered to appear for their depositions at a time, date
and location to be noticed by defendants. The depositions may be taken
on 5 days notice.
The Court has received Mr. Mattos' opposition to the motion for a
separate trial in which he agrees to a mutually agreeable time and place
to go forward with depositions. If defendants want to meet and confer
with plaintiffs prior to setting their depositions, they may do so. The
Court however will not order the parties to meet and confer on a
mutually agreeable date and time given the history involved in
attempting to take the depositions.
Defendants' request for sanctions is denied. The notice of motion does
not specify the type of sanction sought. C.C.P. 2023(c).
This minute order is effective immediately. No formal order is needed,
C.R.C. rule 391, nor is further notice of this ruling required.
Defendants' motion for a separate trial will be heard on January 17,
2003, at 9:30 a.m. in department 47. Mr. Kolb will renotice the motion
for that date, time and department.
Department 54
January 10, 2003
Page 7
________________
***
ITEM 16 01AM08056 NCO FINANCIAL SYSTEMS, INC. VS. ELIZABETH ROWDEN, ET AL
Nature of Proceeding: CLAIM OF EXEMPTION
Filed By: SIMMONS, FRANK C.
The claim of exemption is denied. An exemption from levy cannot be
claimed when the underlying judgment/debt was incurred for the common
necessaries of life furnished to the judgment debtor or his family.
C.C.P. 706.051(c).
***
ITEM 17 02AM02522 SEARS, ROEBUCK AND CO. VS. RICHARD GUTIERREZ
Nature of Proceeding: Motion To Compel
Filed By: WONG, MITCHELL L.
Defendant Gutierrez is ordered to serve verified responses, without
objections, to plaintiff Sears, Roebuck's Form Interrogatories and
Special Interrogatories, sets one, no later than Tuesday, January 21,
2003.
The request for a monetary sanction is denied as the motion regarding
the interrogatories is unopposed.
The Admissions, set one, served on defendant Gutierrez are deemed
admitted unless, prior to the hearing, Mr. Gutierrez serves proposed
responses that comply with C.C.P. 2033(f)(1). C.C.P. 2033(k).
A mandatory monetary sanction of $108.63 is awarded to plaintiff Sears,
Roebuck from defendant Gutierrez.
Plaintiff failed to give notice to defendant of this Court's tentative
ruling system, as required by Local Rule 3.04(D). Plaintiff is to
notify defendant of the Court's tentative ruling and the tentative
ruling procedure, forthwith. Counsel should also be on telephone
standby on the morning of the hearing in case defendant Gutierrez
appears to contest the ruling.
This minute order is effective immediately. No formal order is needed,
C.R.C. rule 391.
Department 54
January 10, 2003
Page 8
________________
***
ITEM 18 02AM05866 BENJAMIN RAY BLANKENSHIP VS. PRUDENTIAL VIA MEYER
Nature of Proceeding: Motion To Compel
Filed By: GITTISRIBOONGUL, ALVIN
Plaintiff Blankenship is ordered to serve verified responses, without
objections, to Defendant Meyer's Form Interrogatories and Request for
Production of Documents, sets one, no later than Tuesday, January 21,
2003.
The request for a monetary sanction is denied as the motion regarding
the interrogatories and document requests is unopposed.
The Admissions, set one, served on Plaintiff Blankenship are deemed
admitted unless, prior to the hearing, Mr. Blankenship serves proposed
responses that comply with C.C.P. 2033(f)(1). C.C.P. 2033(k).
A mandatory monetary sanction of $150.30 is awarded to defendant Meyer
from plaintiff Blankenship.
This minute order is effective immediately. No formal order is needed,
C.R.C. rule 391, nor is further notice of this ruling required.
***
