&l2A NOTICE: To request limited oral argument on any matter on this calendar, you must call the Court at (916) 874-7858 (Department 53) by 4:00 p.m. the day before this hearing and advise opposing counsel. Local rule 31(h). If no call is made the tentative ruling becomes the order of the court. JUDGE MCMASTER DISCLOSES THAT ATTORNEYS APPEARING IN CASES ON TODAYS CALENDAR MAY HAVE DONATED TO THE COMMITTEE FOR JUDICIAL INDEPENDENCE WHICH WAS FORMED TO OPPOSE THE ATTEMPTED RECALL OF JUDGE MCMASTER. A LIST OF DONORS AND AMOUNTSè DONATED IS UNDER THE CUSTODY OF COURT EXECUTIVE OFFICER JODY PATEL AND CAN BE REVIEWED AT ROOM 611, SIXTH FLOOR, COURTHOUSE, 720 NINTH STREET. TENTATIVE RULINGS Department 53 Superior Court of California 800 Ninth Street, 3rd Floor 4OREN E. McMASTER, Judge T. WEST, Clerk V. CARROLL, Bailiff April 7, 2005, 02:00 ITEM 1 03AS01743 THE REGENTS OF THE UNIV. OF CAL. VS. MAD RIVER, ET AL Nature of Proceeding: MOTION TO FIX ATTORNEY'S FEES Filed By: COTTER, PAUL R. Cross-defendant Clarendon National Insurance Company's Motion to Fix Attorney's Fees as an Item of Costs is grsnted. The Court on its own motion has stricken Exhibit J to the Cotter Declaration (Settlement Conference Statement) and has not considered it. Evidence Code section 1152; Local Rule 4.01 D (1). The Clerk is ordered to remove the Exhibit and destroy it. Moving party prevailed on summary judgment against cross-complainant Mad River Community Hospital on a breach of contract claim on January 31, 2005. The contract of insurance between the parties provided that the prevailing party shall be indemnified for its legal expenses, provided that they were not incurred as a result of the sole negligence or intentional acts of Clarendon. (Exh. C.) Civil Code section 1717(a). Clarendon requests an award of $48,620.25 as reasonable attorneys' fees and costs. In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs. . . .Reasonable attorney's fees shall be fixed by the court, and shall be an element of the costs of suit. Civil Code section 1717. In opposition, cross-complainant Mad river contends that the contract contemplated a third party suit against Clarendon by an insured, not a first party suit by Mad River, and that "legal expenses" does not expressly include legal fees. Further, Mad River asserts that the issue of costs is for the jury, citing Hsu v. Semiconductor Systems, Inc. (2005) 126 Cal. App. 4th 1330. That case addressed contractual recovery of costs, not attorneys' fees, thus is distinguishable. Mad River contended that it was entitled to indemnification under the terms of the policy which it now claims is invalid. An insured's signature is not required on a policy of insurance. Mad River employed an insurance professional (Gallagher Benefit Services) to assist Mad River with the negotiation of the contract, the insured is presumed to have knowledge of the usage of trade in the insurance industry. The Court finds that as this suit involved coverage for the case given by the Regents to Mad River's insureds, it falls within the scope of the contract language, although the suit was not filed by the insureds. Civil Code section 1717 expressly provides that reasonable attorneys' fees shall be fixed by the court. Civil Code section 2778 further provides that an "indemnity against claims, or demands, or liability, . . . embraces the costs of defense against such claims, demands, or liability incurred in good faith, and in the exercise of a reasonable discretion." The motion for attorneys' fees is granted. The Court awards reasonable fees and costs in the amount of $48,620.25, as set forth in the Cotter declaration and exhibits, to be paid by Mad River Community Hospital to cross-defendant Clarendon National Insurance Company. Prevailing party Regents shall submit a formal order for the Court's signature, pursuant to C.R.C., Rule 391. 1743203 Department 53 April 7, 2005 Page 2 ______________ *** ITEM 2 03AS02813 LOIS M. COPLEA VS. DAVID ROMO, ET AL Nature of Proceeding: MOTION FOR ENTRY OF JUDGMENT Filed By: PROAPS, RICHARD A. Plaintiff's motion to enforce the written settlement agreement pursuant to CCP 664.6 is denied without prejudice. The court cannot rule on the motion without having the settlement agreement before it. The fact that plaintiff will bring it to the hearing is not a substitute for providing the court with a copy with the moving papers. The Court prepares its rulings one to three days days prior to the case being on calendar. The court will not use the time set aside for oral argument to review a settlement agreement. If the agreement is deemed to meet the standards for sealing a record, plaintiff may request it be sealed by following the procedures set forth in CRC Rule 243.2 This minute order is effective immediately. No formal order is required, the tentative ruling being sufficient notice. *** ITEM 3 03AS03237 MARTY R. COPLEA, ET AL VS. DAVID ROMO, ET AL Nature of Proceeding: MOTION FOR ENTRY OF JUDGMENT Filed By: PROAPS, RICHARD A. Plaintiffs' motion to enforce the written settlement agreement pursuant to CCP 664.6 is denied without prejudice. The court cannot rule on the motion without having the settlement agreement before it. The fact that plaintiff will bring it to the hearing is not a substitute for providing the court with a copy with the moving papers. The Court prepares its rulings one to three days days prior to the case being on calendar. The court will not use the time set aside for oral argument to review a settlement agreement. If the agreement is deemed to meet the standards for sealing a record, plaintiff may request it be sealed by following the procedures set forth in CRC Rule 243.2 This minute order is effective immediately. No formal order is required, the tentative ruling being sufficient notice. Department 53 April 7, 2005 Page 3 ______________ *** ITEM 4 03AS03547 PREMIER INDUSTRIES, INC., ET AL VS. WEST COAST COMPANY ET AL Nature of Proceeding: MOTION TO SET ASIDE DEFAULT Filed By: FERRIS, FRANK J. Continued to 04/21/2005 *** ITEM 5 03AS06876 LINDA BLOOM, ET AL VS. JAMES WILSON, ET AL Nature of Proceeding: Motion To Compel Filed By: NGUYEN, LEHOA Plaintiffs Linda Bloom, Thomas Worden and Kevin Conley's Motion to Compel Dale Winchester and Jeffrey Wilson to Produce Documents is denied. The cross-motions for imposition of sanctions are denied. The requests for production were personally served on February 27, 2004 on Jeff Wilson and Dale Winchester. Due to challenges to the pleadings, the parties agreed that the responses would be due 30 days after the pleadings were final. On April 26, 2004, both defendants timely served responses to the requests for production, asserting objections. After meet and confer attempts, defendants confirmed that they were not going to submit further responses by letter dated May 18, 2004. Moving parties treat this motion as one to compel responses where none have been provided, under Code of Civil Procedure section 2031(l). However, as responses with objections were served in April 2004, the motion may only properly be made under Code of Civil Procedure section 2031(m). That section requires that notice of the motion be given within 45 days of the service of the response, or any supplemental response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing. As no later date was agreed to in writing, and the 45 day period has passed, the demanding parties have waived any right to compel a further response to the inspection demand. Code of Civil Procedure section 2031(m). The opposing parties request for imposition of sanctions is denied as the Court finds that "other circumstances make the imposition of the sanction unjust" exist. Counsel for the plaintiffs Linda Bloom, Thomas Worden and Kevin Conley was unaware that objections had been served in April of 2004. The Court takes judicial notice of the fact that present counsel substituted into the case in July 2004. This minute order is effective immediately. No formal order nor further notice is required, the tentative ruling providing sufficient notice. 795203 Department 53 April 7, 2005 Page 4 ______________ *** ITEM 6 04AS01935 DIONNA MUSTYBROOK, ET AL VS. STATE OF CALIFORNIA, ET AL Nature of Proceeding: DEMURRER, MOTION TO STRIKE Filed By: KEEGAN, PATRICIA M. Defendants' demurrer to the sixth cause of action, disability - failure to accommodate, is sustained without leave to amend. Although clinical depression can be a mental disability requiring accommodation, plaintiff must also plead that it limits a major life activity. The allegations of paragraph 48 and 50 do not describe a major life activity. Rather they are merely descriptive of plaintiff's symptoms. Also plaintiff has not pled that the particulars of her disability were known to the defendant. Her request that she be moved away from defendant Gee because his close proximity was upsetting to her (paragraphs 43-47) is insufficient notice of a disability. The allegations in paragraphs 50 and 54 do not show notice to defendant. The demurrer to the seventh cause of action for intentional infliction of emotional distress is sustained without leave to amend. The court has previously overruled the demurrer of Gee, finding that the allegations related to his conduct were sufficiently egregious to be outside the employment relationship and not within the exclusive remedy of worker compensation. However, the allegations related to Watson are not sufficient. In order to establish such a claim, plaintiff must have evidence of "conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind. The requirements of the rule are rigorous, and difficult to satisfy." Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1129. Failure to accommodate plaintiff by moving her is conduct within the employment relationship. The fact that he confronted her about an e-mail message is also within the employment relationship, even if he was rude about it. Hence, the kinds of conduct at issue are a normal part of the employment relationship. See Shoemaker v. Myers (1990) 52 Cal. 3d 1, 25. In any event, his conduct was not so outrageous as to go beyond the bounds of human decency. The demurrer to the ninth cause of action for negligent infliction of emotional distress is sustained without leave to amend. Essentially plaintiff alleges defendants owed her a duty not to discriminate against her, harass her or refuse to accommodate her; their conduct was negligent, and she has suffered emotional distress. This cause of action is duplicative of plaintiffs' claims for violations of Title VII and the FEHA for which she has alleged emotional distress as an element of damages. Furthermore, she cannot recover for negligence against her employer. Workers' compensationn is her exclusive remedy for employer negligence, especially when the conduct is of the type that is a normal part of the employment relationship. Even if the conduct may be characterized as intentional, unfair or even outrageous. it is nevertheless covered by the workers' compensation exclusivity provisions. Shoemaker v. Myers (1990) 52 Cal. 3d 1, 25. Defendants' motion to strike paragraph two is denied. Even if it is duplicative, it is not irrelevant, false, or improper. The motion to strike paragraph 76 is also denied. The motion to strike paragraph 87 and paragraph 3 of the related prayer is subsumed in the ruling on the demurrer as to defendant Watson and otherwise denied. The motion is denied as to paragraph 82 except for the language "pregnancy related complications," which plaintiff concedes was inadvertently included. As this is the second amended complaint, no further leave to amend is given. Defendants shall filed and serve their answer to the remaining causes of action by April 18, 2005. This minute order is effective immediately. No formal order is required, the tentative ruling being sufficient notice. Department 53 April 7, 2005 Page 5 ______________ *** ITEM 7 04AS02275 LYNN BRIGGS VS. ROSEVILLE CYCLE/HONDA OF SACTO, ET AL Nature of Proceeding: Summary Judgment Filed By: COSTA, DANIEL P. Defendants Roseville Cycle/Honda of Sacramento, Lee Miller and Dave Hoing (collectively " Roseville Cycle") Motion for Summary Judgment, or in the Alternative for Summary Adjudication of Issues is granted in part and denied in part. Plaintiff's Request for Judicial Notice is granted. Defendants' Requests for Judicial Notice are granted. The Court rules on defendants' Evidentiary Objections as follows: objections nos. 1 - 44 are overruled. Plaintiff's complaint alleges five causes of action: the 1st for retaliation, in violation of Govt. code section 12950, the 2nd for sexual harassment, the 3rd for failure to prevent sexual harassment, the 4th for breach of contract, and the 5th for breach of the covenant of good faith and fair dealing. The motion for summary adjudication of the 1st cause of action for retaliation, in violation of Govt. code section 12950, is denied. There are three elements of a prima facie case under Government Code section 12940. First, the evidence must show that plaintiff engaged in a protected activity. Although defendants dispute that any sexual harassment occurred, Roseville Cycle does not dispute that plaintiff's complaints regarding Hoing's allegedly harassing comments constituted a legally protected activity under FEHA. Defendant concedes that Roseville Cycle may not terminate plaintiff for reporting harassment, even if she was mistaken as to whether it constituted actual harassment. Second, plaintiff must be subject to adverse employment action, here, plaintiff was terminated. Third, there must be substantial evidence of a causal link between the protected conduct and the termination to require this issue to be resolved by a fact finder. Flait v. North Am. Watch Corp. (1992) 3 Cal. App. 4th 467, 478. Here, Roseville Cycle denies that the plaintiff's complaints were a motivating factor in plaintiff's termination. Pretext may also be inferred from the timing of the company's termination decision, by the identity of the person making the decision, and by the terminated employee's job performance before termination. Flait v. North Am. Watch Corp. (1992) 3 Cal. App. 4th 467, 479. Plaintiff has submitted evidence that the identity of the person who made the decision, Lee Miller, is the same as the person who instructed the human resources manager to fire plaintiff immediately upon hearing her complaint. When Miller met with plaintiff he accused her of lying and criticized her for not following the correct procedure, Miller admitted he did not believe plaintiff. Plaintiff's job performance had been good. She had been employed by Roseville Cycle for over nine years, had been given good performance evaluations and regular raises. She had not been notified of any problems in her performance prior to her termination. The reason she was given for her termination was that the company was restructuring and her position was being eliminated, which was not true. Roseville Cycle later changed its reason for terminating her to poor performance. The timing of plaintiff's termination was eight months after making her complaint. Miller had wanted to terminate her immediately, but had been told by human resources that was not permissible. In Flait, supra, the plaintiff was terminated 10 months after the complaint. Viewing the evidence in the light most favorable to plaintiff, a reasonable trier of fact could conclude that Roseville Cycle's articulated reasons for terminating plaintiff's employment are not worthy of credence. The Court finds that disputed issues of material fact remain as to the 1st cause of action, thus the motion is denied. (Defendants' Disputed Material Facts 7, 12, 40, 41, 45, 50, 54, 58, 59, 61, 64-66, 69-70, 76, 81; Plaintiff's Additional Material Facts 1-54.) The motion for summary adjudication of the 2nd for sexual harassment and the 3rd for failure to prevent sexual harassment are granted. Moving parties contend that defendant Dave Hoing's remarks to plaintiff do not constitute sexual harassment as a matter of law. The elements of environmental sexual harassment are: (1) plaintiff belongs to a protected group; (2) plaintiff was subject to unwelcome sexual harassment; (3) the harassment complained of was based on sex; (4) the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment; and (5) respondeat superior. Fisher v. San Pedro Peninsula Hospital 214 Cal.App.3d (1989) 590, 608. Harassment cannot be occasional, isolated, sporadic, or trivial; rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature. Aguilar v. Avis Rent A Car Sys. (1999) 21 Cal. 4th 121, 131. Defendant asserts that he only made two offhand remarks to plaintiff on a single day: that a customer had his tongue down another employee's throat, and later referred to a musty room, by saying "it smells like sex in here". Defendant Hoing asserts that this is insufficient to satisfy the element that the harassment be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment. Defendant asserts that his comments were an insolated, one time event. (MF 14-18, 40-41, 47-49, 55.) Plaintiff concedes that the unwelcome comments were not pervasive, but contends that a triable issue of material fact remains as to whether the comments, together with the single confrontation with Lee Miller was sufficiently severe to constitute a hostile work environment. The Court finds that, as a matter of law, two incidents is "occasional, isolated, sporadic, or trivial" not a concerted pattern of harassment of a repeated, routine or a generalized nature, and thus fails as a matter of law. Aguilar, supra. The motions for summary adjudication of the 4th cause of action for breach of contract and the 5th for breach of the covenant of good faith and fair dealing are granted, as plaintiff concedes that these are not viable causes of action. (Oppo., 19:2-4.) The motion for summary judgment is denied since summary adjudication of all causes of action was not granted. The prevailing party defendants are directed to prepare an order for the Court's signature pursuant to C.C.R. section 437c(g) and C.C.R., Rule 391. 2275203 Department 53 April 7, 2005 Page 6 ______________ *** ITEM 8 04AS02303 FIRST NATL INS CO OF AMERICA VS. ROLLING ROCK CONST, INC, ET Nature of Proceeding: Motion To Compel Filed By: JUNGREIS, JASON Z. Plaintiff's motion to compel discovery responses from the Martin defendants is granted. The request that matters be deemed admitted is denied. Objections are waived. Defendants have filed a non-opoposition stating they have now provided responses. At the time the motion was drafted and mailed, March 7, 2005, plaintiff had received no verified responses. On March 9, 2005 defendants served responses with objections. Objections are wavied. Defendants incorrectly believe they must be relieved from waiver of objections because they have provided responses and their failure to do so was the result of mistake. Relief from waiver of objections must be by noticed motion. As for the admissions, the motion is denied as defendants have responded. Despite a "blanket" objection, defendants have responded to each request in compliance with CCP 2033(f) as provided in 2033 (k). Plaintiff served separate requests on each defendant but defendants responded jointly, Defendants must respond separately. Defendants shall file separate amended responses without objections. Mandatory sanctions on the requests for admissions are ordered in the amount of $1206.30 (6 hours, $195.00 per hour plus filing fee). The sanctions shall be paid by May 7, 2005. This minute order is effective immediately. No formal order is required, the tentative ruling being sufficient notice. *** ITEM 9 04AS02453 RANDY BERNSTEIN VS CHARLIE NAVES, ET AL Nature of Proceeding: Demurrer Filed By: MERRITT, ROBERT M. Defendants' demurrer to the second amended complaint is unopposed, which is taken as a concession to its merits and it is sustained without leave to amend for all the reasons set forth in the demurring papers. Defendants shall submit a formal order and judgment of dismissal. Department 53 April 7, 2005 Page 7 ______________ *** ITEM 10 04AS02833 BEA HEIR, ET AL VS. ADVANCED LASER CLINICS OF SACTO, LLC Nature of Proceeding: Motion To Compel Filed By: GIBSON, MARK Dropped. *** ITEM 11 04AS03015 RUFUS SPEAKS VS. RYLAND HOMES, INC. Nature of Proceeding: Motion To Withdraw Atty of Rec Filed By: MILLER, MARY V. Dropped. The motion is not timely. It was served by mail on March 17, 2005, 14 court days before the hearing. A motion must be served 16 court days before the hearing plus five calendar days if service is by mail. CCP 1005(b). *** ITEM 12 04AS03467 WELLS CONST GRP,INC.,ETAL VS. SAC UNIFIED SCH DIST.,ETAL Nature of Proceeding: Motion For Judgment On Pleadin Filed By: SCHWARTZ, STEVEN H. Defendant PCM3's motion for judgment on the pleadings is denied. Plainitff has alleged one cause of action against defendant, intentional interference with the contractual relationship between plaintiff and its door frame subcontractor. Defendant contends it owes no duty to plaintiff because there is no contractual or other relationship between it and plaintiff. Defendant's authorities are inapposite. Defendant is not being sued for negligence by a party to whom it owes no duty. It is being sued for its own alleged intentional tort; intentional interference with the contract between plaintiff and its subcontractor. A claim for punitive damages is not a cause of action and may not be attacked by demurrer or motion for judgment on the pleadings. A motion to strike is the correct procedural device. This minute order is effective immediately. No formal order is required, the tentative ruling being sufficient notice. Department 53 April 7, 2005 Page 8 ______________ *** ITEM 13 05CS00121 IN RE: SHARONDA ATKINS Nature of Proceeding: Petition For Change Of Name Filed By: ATKINS, SHARONDA Granted. Granted. *** ITEM 14 05CS00185 DONNA DEWITZ VS. COURTNEY POWELL Nature of Proceeding: Petition To Compel Arbitration Filed By: DEWITZ, DONNA Dropped. There is no proof of service in the court's file. Since this is the first pleading in this matter, unless the agreement provides otherwise, service must be in the same manner as a summons and complaint for the court to have jurisdiction. CCP 1290.4(b)(1). *** ITEM 15 05CS00199 MICHAEL EGGMAN VS. AMY LE VAN CIMINO Nature of Proceeding: Petition To Compel Arbitration Filed By: HIBBERT, STEVEN Dropped. As the petition is the initial pleading in the case, unless the agreement provides otherwise, service must be in the same manner as a summons and complaint for the court to have jurisdiction. CCP 1290.4(b)(1). *** ITEM 16 05CS00315 IN RE: JOHN H. HARRIS; CHARLES KLASS, ET AL Nature of Proceeding: PET FOR GOOD FAITH SETTLEMENT Filed By: MILES, LAWRENCE W. Dropped. The parties are free to enter into any agreement resolving their disputes. However, there is no authority for the court to determine their agreement is in good faith when there has never been any action filed giving the court jurisdiction. Department 53 April 7, 2005 Page 9 ______________ ***