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
January 14, 2003, 09:00
ITEM 1 00AS06716 VELMA I. FOLLOWWILL VS. KATHLEEN CONNELL
Nature of Proceeding: Summary Judgment
Filed By: BOWoERS, JILL
Continued to 01/21/2003
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ITEM 2 01AS05672 MARY LOUISE KLEIN, ET AL VS. THOMAS D. TALBERT, ET AL
Nature of Proceeding: Motion To Withdraw Atty of Rec
Filed By: TOLLEFSON, SUZANNE A.
Defendants oppose the motion to withdraw made by Vitale & Lowe on the
ground this action is stayed, it was consolidated with an Arbitration
Action, and therefore this court lacks jurisdiction to grant the motion.
The Court has jurisdiction to grant the motion to withdraw from
representing plaintiff in this action.
The Court will sign the order lodged with the motion. The order will
become effective on the day counsel files a proof of service in
department 54 showing the client was served with a copy of the signed
order. Counsel is to also serve all other parties who have appeared in
the action with a copy of the signed order.
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Department 54
January 14, 2003
Page 2
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ITEM 3 01AS07790 ROBBI D. CURTEMAN VS. HENWOOD ENERGY SERVICES, INC.
Nature of Proceeding: Motion For Summary Adjudicatio
Filed By: GRAY, RICHARD R.
Defendant's motion for summary adjudication of the first cause of action
for marital status discrimination in violation of the FEHA; and the
third cause of action, termination in violation of public policy,
insofar as it is based on marital status discrimination, is granted,
pursuant to plaintiff's concession. It is undisputed no one at the
company, including her supervisor Matt Harris, made any derogatory
remarks or treated plaintiff any differently because of her marital
status; plaintiff never complained to anyone about any kind of marital
status discrimination; plaintiff does not believe she was treated any
differently than any other employee because of her marital status. See
plaintiff's response to defendant's separate statement, facts ##7-22 and
evidence cited therein by defendant and plaintiff.
Defendant's motion for summary adjudication of the second cause of
action for unlawful retaliation; and the third cause of action,
termination in violation of public policy, insofar as it is based on the
family leave act, is granted. In analyzing the papers, the Court must
accept plaintiff's version of the facts, giving her the benefit of the
doubt and all reasonable inferences. Plaintiff's evidence does not
create a triable issue of material fact as to whether plaintiff was
terminated due to her taking family leave due to her mother's health,
taking three days off in May and her indication she might seek another
leave of absence. See plaintiff's declaration, paragraphs 19-25; emails
of Tuesday, May 29, 2001, 9:14 am, 3:39 p.m. and 3:49 p.m.; Harris
deposition, pages 47, 48, 50, 51, 53, 57 and 58; plaintiff's deposition,
pages 20, 122-128, 148-151. Plaintiff's evidence that Mr. Harris'
comments that he was being fair with plaintiff with all the time off she
had with her mom in the hospital and he could not have an unstable
person working for him as he needed someone present to perform
plaintiff's duties can not reasonably be interpreted as showing the
reason for her termination was due to her prior family leave or any
request for leave. It is plaintiff's burden to produce evidence
sufficient to show a triable issue of material fact that the decision to
terminate her was due to an impermissible motive. She has failed to do
so. Hersant v California Dept. of Soc. Servs. (1997) 57 C.A.4th 997.
Defendant's evidentiary objections to plaintiff's declaration:
I. (A): sustained; (B): sustained as to line 16; (C): sustained as to
line 7, starting with the word "at", otherwise overruled ; (D):
sustained as to line 13, starting with the words "I also expressed"
through line 14, ending with the word "experiencing", otherwise
overruled; (E): overruled; (F): overruled; (G): overruled
Based on the rulings above, the motion for summary judgment is 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.
Department 54
January 14, 2003
Page 3
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ITEM 4 02AS00668 GEN ELECT CO., ET AL VS. ZANE HAMMOND CONST, INC., ET AL
Nature of Proceeding: MOTION FOR ATTORNEYS FEES
Filed By: REYNOLDS, KENNETH R.
The request for attorney's fees is unopposed and is granted. General
Electric is awarded $22,305.00 against defendant Zane Hammond
Construction, Inc.
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 5 02AS01992 ERIN LEIMAN, ET AL VS,OCWEN FEDERAL BANK, ET AL
Nature of Proceeding: Motion To Compel
Filed By: HOFFMEYER-LEPORE, KIM
The motion to compel further responses to Request for Production, ## 12
and 13, is denied. The causes of action against Ocwen are for breach of
a forebearance agreement and interference with contract. Plaintiff is
seeking damages, not equitable relief such as setting aside the
foreclosure sale. Whether plaintiff had the funds to tender full
payment is not an issue in the case, therefore defendant's rationale for
seeking further responses to their document requests does not fit the
facts or legal theories of this case.
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 6 02AS02096 LINDI FLEEMAN VS. FUTURE NISSAN, ET AL
Nature of Proceeding: MOT FOR AN ORD COMP ARB & STAY ACTN
Filed By: LOCKREM, LIZBETH WEST
Plaintiff's opposition to the motion suffers from the same problem
Countrywide Securities Corporation had in Mercuro v Superior Court
(2002) 96 C.A.4th 167, 177: she presents argument without evidentiary
support. Nevertheless, the Court has reviewed the arbitration agreement
and considered plaintiff's arguments. The Court finds there is no
evidence the arbitration agreement is procedurally unconscionable. As
to substantive unconscionability, the arbitration agreement provides for
arbitration of all disputes between the parties, allows for discovery, a
written award, a neutral arbitrator, and review of the arbitrator's
decision by another arbitrator proceeding according to the law and
procedures applicable to appellate review. However, the arbitration
provision does not expressly state who shall pay for the arbitration.
It states arbitration provides the company and the employee with mutual
benefits (such as reduced expenses), which plaintiff argues leads to the
conclusion both parties are to pay for the arbitration. Plaintiff also
argues that sharing the fees prevents plaintiff from having an adequate
opportunity to vindicate her important unwaivable statutory rights under
the FEHA. Mercuro, supra, at 179, 181-182. Although the Court has the
option of severing or limiting the clause so as to avoid the
unconscionable or illegal result, then enforcing the remainder of the
contract, Mercuro, supra, at 184-185, the Court does not find the clause
to require that both parties share the expenses of arbitration. Since
the arbitration agreement is silent as to who will bear the costs of
arbitration, they must be borne by the employer since, as noted, the
employee cannot be made to bear any of the costs of the arbitration,
Mercuro, supra, at 181. Future Ford has stated it shall pay all
arbitration costs. Based on the evidence and arguments presented, the
Court grants the Petition to Compel Arbitration, with the employer
ordered to pay all costs of arbitration.
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 14, 2003
Page 4
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ITEM 7 02AS03102 TIMOTHY S. JEWEL VS. SACRAMENTO COUNTY
Nature of Proceeding: Motion To Withdraw Atty of Rec
Filed By: MCGLAMERY, JAMES E.
The motion to withdraw is granted. The Court will sign the order lodged
with the motion. Counsel is relieved as attorney of record on the day
he files, in department 54, a proof of service showing the client was
served with a copy of the signed order. Counsel is to also serve all
other parties who have appeared in the case with a copy of the signed
order.
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ITEM 8 02AS05318 LARRY RIDDLE-MEZA, ET AL VS. SBC PACIFIC BELL
Nature of Proceeding: Demurrer
Filed By: ANDERSON, CAROL M.
Continued to 02/06/2003
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ITEM 9 02AS05440 PEOPLE OF THE STATE OF CA VS. EUROPEAN HEALTH CONCEPT, ET AL
Nature of Proceeding: DEMURRER TO BUTTRRICK'S ANSWER
Filed By: BOTWIN, MICHAEL R.
The People's demurrer to the sixth, eighth, ninth, sixteenth and
seventeeth affirmative defenses contained in Buttrick's answer is
sustained without leave to amend pursuant to defendant Buttrick's
concession.
The demurrer to the eleventh, eighthteenth, nineteenth and twentieth
affirmative defenses is sustained without leave to amend for failure to
state facts sufficient to constitute affirmative defenses. The alleged
affirmative defenses do not consist of new matter.
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 14, 2003
Page 5
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ITEM 10 02AS05440 PEOPLE OF THE STATE OF CA VS. EUROPEAN HEALTH CONCEPTS, INC.
Nature of Proceeding: MT TO STRIKE ANS OF BURITRICK
Filed By: JACKSON, ESTHER
The People's motion to strike the portion of Mr. Buttrick's Answer
seeking attorney's fees, found in paragraph 4 of the prayer, and to
strike the phrase "Plaintiff's own actions or breaches, or" set forth in
the Tenth Affirmative Defense on page 6, line 23, is granted. Mr.
Buttrick has filed a statement of non-opposition. The motion to strike
is granted 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.
***
ITEM 11 02AS05440 PEOPLE OF THE STATE OF CA VS. EUROPEAN HEALTH CONCEPTS,INC.
Nature of Proceeding: MT TO STRKE BRYSON'S PRYR ATTY
Filed By: BOTWIN, MICHAEL R.
Plaintiff's Motion to Strike Defendant Bryson's Prayer for Attorney Fees
and Plaintiff's Demurrer to the Answer of Lynne Bryson are continued to
2/11/03 at 9:00 a.m. in Department 54.
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ITEM 12 02AS07082 CARMEN FARR VS. LEON ID MELNYCHUK, ET AL
Nature of Proceeding: MOTION FOR PRELIMINARY INJUNCTION
Filed By: ORTIZ, JESSE S. III
According to Mrs. Akhramenko, as of November 21, 2001, the duplex was
approximately 85% complete and they had no knowledge of the Tract
Restriction when they bought the lot. Defendants have spent in excess
of $160,000 in construction costs and fees for construction of the
duplex. The duplex is permitted pursuant to the zoning regulations of
the County and there are already apartment complexes in the
neighborhood. The "Declaration of Tract Restrictions by Twin Gardens"
attached to the complaint states that no building or other structures
shall be allowed to be erected except one detached single family
dwelling. See Paragraph 3. Plaintiff bases her request for a
preliminary injunction on the argument that defendants erection of a
duplex is prohibited by the Tract Restrictions and that she relied on
those in purchasing her home. In balancing the equities, the Court
finds that denying the injunction would not harm plaintiff as much as
granting the injunction would harm the defendants. Defendants however
must realize that denying the preliminary injunction does not mean that
the Court may not later grant a permanent injunction which would require
them to demolish the duplex. That is a chance that defendants
apparently wish to take, however.
The request for a preliminary injunction 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.
Department 54
January 14, 2003
Page 6
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ITEM 13 02CS01902 FRANCIS WONG VS. ALLIED INSURANCE
Nature of Proceeding: Motion To Compel
Filed By: SALAZAR, MATTHEW G.
Francis Wong is ordered to serve verified responses, without objections,
to Allied Insurance's Form Interrogatories and Request for Production of
Documents, sets one, no later than Friday, January 24, 2003.
The request for sanctions is denied since Notice of the request for
sanctions is not properly given, nor is the motion opposed. C.C.P.
2023.
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 14 02CS01920 REBECCA ZULIM VS. KAISER PERMANENTE MEDICAL GROUP
Nature of Proceeding: Petition To Compel Arbitration
Filed By: FERRIS, NOEL M.
Section VIII (D) of the Participant Physician Employment Agreement
states, in the first paragraph, that 2 party arbitrators and a third
neutral arbitrator shall be designated within certain designated time
periods after service of a Demand for Arbitration in which the dispute
pertains to the doctor's "...termination of employment...." The second
paragraph states that, after service of a demand for arbitration "... in
which the dispute does not pertain to the [doctor's] termination of
employment, ..." a single neutral arbitrator shall be selected. The
Petition in this case pertains to the doctor's termination of
employment. The agreement does not differentiate between the manner in
which the employment is terminated, i.e., whether the termination occurs
due to the doctor resigning or the group discharging her, it simply
refers to two disputes: one involving termination, one not involving
termination and the procedures to be followed in each instance.
Plaintiff's petition is granted and respondent is ordered to appoint a
party arbitrator no later than Friday, January 24, 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.
Department 54
January 14, 2003
Page 7
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ITEM 15 02CS01926 LETICIA RODRIGUEZ VS. ALLIED INSURANCE
Nature of Proceeding: MOTION TO COMPEL
Filed By: SALAZAR, MATTHEW G.
Leticia Rodriguez is ordered to serve verified responses, without
objections, to Allied Insurance's Form Interrogatories and Request for
Production of Documents, sets one, no later than Friday, January 24,
2003.
The request for sanctions is denied since Notice of the request for
sanctions is not properly given, nor is the motion opposed. C.C.P.
2023.
This minute order is effective immediately. No formal order is needed,
C.R.C. rule 391. Allied Insurance to serve Ms. Rodriguez with notice of
this ruling.
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ITEM 16 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 02/06/2003
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ITEM 17 01AM01490 TRACY GANOW VS. BRIAN D. MARSTON
Nature of Proceeding: Motion To Dismiss
Filed By: LININGER, THOMAS D.
This matter is transferred to department 44, Judge Rodda. Please call
874-8243 for information regarding this motion.
Department 54
January 14, 2003
Page 8
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ITEM 18 01AM05782 RICHMOND AMERICAN HOMES VS. AIR DESIGN, INC., ET AL
Nature of Proceeding: MOTION FOR GOOD FAITH SETTLEMENT
Filed By: MCENEANEY, JENNIFER
The motion to determine the settlement between Old Country Roofing and
Richmond American Homes of Northern California is made in good faith is
unopposed and is granted. A review of the settlement shows the
Tech-Bilt factors have been met.
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 19 01AM08866 JOSE MARI JACINTO, ET AL VS. LATONIA WILLIAMS
Nature of Proceeding: MOTION TO CONFIRM ARBITRATION AWD
Filed By: CONCEPCION, RAMON N. JR.
The arbitrator initially rendered an Award on September 24, 2002, which
he served on the parties that day and filed with the Court. On November
1, 2002, the Court entered judgment based on the Award filed with the
Court. In the meantime, the confusion resulting from plaintiffs'
Request that the arbitrator clarify his award led to the arbitrator's
service on November 4, 2002, of a "Final Amendment" Award of Arbitrator,
dated September 24,'02; and an "Amended" Award of Arbitrator dated
October 31, 2002 and served on October 31, 2002. The "Amended" Award
states, in the Arbitrator's Comments portion: "Disregard Award dated
September 24, 2002." According to the proofs of service, the last Award
served on defendant was on November 4, 2002. The arbitrator's award was
ambiguous and confusing, with each party having a different idea of the
amounts being awarded. As a result of defendant's understanding of the
award, she did not file a Request for Trial de Novo prior to the Court
entering judgement. The judgment entered by the Court is vacated.
C.R.C. rule 1615(d). Due to the confusion and ambiguity of the award,
it is set aside. The parties are ordered to proceed with the case.
The motion to confirm and correct the arbitration award 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.
Department 54
January 14, 2003
Page 9
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ITEM 20 02AM06382 FOLSOM ESTATES UNIT NO.2B&3 VS. ALBERTA SCHWATKEN, ET AL
Nature of Proceeding: Preliminary Injunction
Filed By: CHON, SAM Y.
The preliminary injunction will issue as prayed upon the filing of a
bond in the amount of $1,000.
Counsel is to comply with C.R.C. rule 359(f).
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