&l2A 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 THOMAS M. CECIL, Judge R. ROUSE, Clerk L. BARCLAY, Bailiff April 8, 2005, 09:00 ITEM 1 02AS02159 JOSEPH F. HARBISON, III VS. NORCAL MUTUAL INS. CO., ET AL č Nature of Proceeding: Motion For Reconsideration Filed By: Plaintiff's motion for reconsideration is denied. Plaintiff contends that the court has inherent authority to reconsider its interim rulings outside of CCP section 1008. Remsen v. Lavacot (2001) 87 Cal.App.4th 421, 426-427. According to plaintiff, he therefore need not meet the "new facts" or "new law" requirement of that statute. Plaintiff's contention is correct, yet problematic. In his reply memorandum, plaintiff points out that he has appealed the court's denial of his earlier fee motion and that he also intends to appeal the ruling that he now asks the court to reconsider. It is plaintiff's position, then, that an order denying a plaintiff's CCP section 425.16(j) fee motion is appealable. The court agrees. As a result, however, the court no longer has inherent authority to reconsider the motion outside of section 1008. The order denying the motion is final, not interim. Remsen, 87 Cal.App.4th at 427. Further, even if the court were to reconsider, it would deny the motion. Plaintiff's argument, largely based on transcript snippets from hearings held in Department 53, is unconvincing. Neither the court's error with respect to prong one or the likelihood that plaintiff would prevail on prong two make defendant's motion frivolous or intended solely for the purpose of delay. CCP section 425.16(c). Further, there is no case holding that a defendant may not file a second anti-SLAPP motion. That is why the court analogized to CCP section 473(c)(f)(2). Finally, opposing counsel's billings with respect to the first two anti-SLAPP motions (only one of which was heard by the court) do not go to the merits of whether defendant's last anti-SLAPP motion was frivolous. This minute order is effective immediately. No formal order pursuant to CRC rule 391 or other notice is required. f Department 54 April 8, 2005 Page 2 ______________ *** ITEM 2 02AS07478 CHRISTOPHER L. PACE VS. ANDREA K. WEBER Nature of Proceeding: MOTION TO QUASH Filed By: MICHAEL LOEWEN Dropped. *** ITEM 3 03AS02618 DIANN L. SMOOTH VS. DEL PASO HEIGHTS SCHOOL DISTRICT, ET AL Nature of Proceeding: Motion To Compel Filed By: ANWYL, JAMES T. Plaintiff requests a continuance to allow the parties to further meet and confer on the discovery responses sought by defendant. Defendant has filed no reply objecting to plaintiff's request. In the interest of judicial economy, plaintiff's request for continuance is granted. The hearing is continued to April 28, 2005. The parties are directed to meet and confer to narrow the issues before the Court, and to file supplemental declarations describing their meet and confer efforts. The parties are further directed to file a joint CRC Rule 335 statement as to any issues remaining to be decided by the Court. The supplemental declarations and joint CRC Rule 335 statement are to be filed in Dept. 54 no later than April 20, 2005. a *** ITEM 4 03AS04820 JOSEPH MOHAMED, SR., ET AL VS. WESTERN PAC HSG, INC., ET AL Nature of Proceeding: Demurrer Filed By: WOODWARD, ARTHUR G. Dropped. Department 54 April 8, 2005 Page 3 ______________ *** ITEM 5 03AS05006 EASTON SPORTS, INC. VS. GERALD CALAMIA, ET AL Nature of Proceeding: Motion To Withdraw Atty of Rec Filed By: BELZER, STEVEN P. The motion to withdraw is unopposed and is granted. The Court will sign the formal order submitted with the moving papers. a *** ITEM 6 03AS05256 ROY HUGH BUNNELL, ET AL VS. ESKATON PROPERTIES, INC., ET AL Nature of Proceeding: Filed By: Appearance Required. *** ITEM 7 03AS06824 KEVIN SPICCI, ET AL VS. BANK OF AMERICA Nature of Proceeding: Motion To Compel Filed By: WECHSLER, GLENN H. Continued to 04/29/2005 *** ITEM 8 04AS00282 ROBERT SAGE BLACKMAN, ET AL VS. STATE FARM GENERAL INS.,ETAL Nature of Proceeding: Motion To Compel Filed By: TOLLEFSON, SUZANNE A. As the motion for change of venue was granted on March 25, 2005, this matter is dropped from calendar. a Department 54 April 8, 2005 Page 4 ______________ *** ITEM 9 04AS00382 CAL SAFE VS. ANGEL K. PATER-HERNANDEZ, ET AL Nature of Proceeding: Summary Judgment Filed By: GREISEN, CARY P. Dropped. *** ITEM 10 04AS01383 GARY ERVIN VS. LEE&MIDGE TAYLOR, ET AL Nature of Proceeding: Default Hearing Filed By: ERVIN, GARY Plaintiff's motion for entry of default is dropped from calendar for insufficient notice. Defendant asserts that the envelope containing the moving papers was postmarked March 15, 2005. The proof of service shows that the moving papers were served by mail on March 12, 2005. In either event, the motion is untimely. Service by mail requires 16 court days plus 5 calendar days notice. CCP section 1005(b); CRC Rule 317. The last date for timely service of the moving papers was March 11, 2005. Defective notice deprives the Court of jurisdiction to hear the motion. Lee v. Placer Title Co. (1994) 28 Cal.App.4th 503, 509, 511. a *** ITEM 11 04AS02050 CHANDA BLACKMORE VS. JAIME MARTINEZ CALDERON, ET AL Nature of Proceeding: MOTION FOR PROTECTIVE ORDER Filed By: BICKEL, MELISSA D. Defendants' motion for protective order that defendant Miguel Angel Martinez need not respond to discovery propounded on him is unopposed and is granted. The lack of opposition is deemed a concession of the merits of the motion. The minute order is effective immediately. No formal order pursuant to CRC Rule 391 or further notice is required. a Department 54 April 8, 2005 Page 5 ______________ *** ITEM 12 04AS02390 WAYNE HADDOCK, VS. JACQUELINE ANNE HART, ET AL. Nature of Proceeding: MOT FOR REL FROM ADM DMD ADM Filed By: PATTON, CHRISTOPHER L. Defendant's motion for relief from deemed admissions is unopposed and is granted. Plaintiff's request for admissions (set one), nos. four, five and six are no longer deemed admitted. The minute order is effective immediately. No formal order pursuant to CRC Rule 391 or further notice is required. a *** ITEM 13 04AS02508 JOSEPH J. MAJAUSKAS VS. SHIRLEY ANN, ET AL Nature of Proceeding: Motion To Compel Filed By: GIGUIERE, MICHELE LOUISE Dropped. *** ITEM 14 04AS03930 JEROME H. SPRAGUE, ET AL VS. SIXELLS, LLC, ET AL Nature of Proceeding: Demurrer Filed By: VU, HUONG V. Dropped. *** ITEM 15 04AS03930 JEROME H. SPRAGUE, ET AL. VS. SIXELLS, ET AL. Nature of Proceeding: MOTION TO STRIKE Filed By: VU, HUONG V. Dropped. Department 54 April 8, 2005 Page 6 ______________ *** ITEM 16 04AS04378 INTNL ASSOC OF MACHINISTS VS. AEROJET GENERAL CORPORATION Nature of Proceeding: Motion To Strike Filed By: BISSONNETTE, CHRISTOPHER M. Defendant's motion to strike is granted except as to the allegations relating to attorney fees pursuant to CCP section 1021.5. For all of the reasons set forth in the moving and reply papers, the Court finds that the additional one hour pay required in Labor Code section 226.7 is a penalty and not wages for time worked. Plaintiff's contention that the one hour pay is a form of premium pay is not persuasive. The Court is not, however, prepared to rule at this time that plaintiff cannot recover attorney fees pursuant to CCP section 1021.5. Defendant is directed to submit a revised formal order consistent with the above and complying with CRC Rule 391 for the Court's signature. a *** ITEM 17 04AS04838 RAY ANTHONY WALTSON VS. COUNTY OF SACRAMENTO Nature of Proceeding: DEMURRER Filed By: HEWITT, SHANAN L. Defendant County of Sacramento's demurrer to the complaint is sustained with leave to amend for failure to state a cause of action. Plaintiff concedes that defendant is immune from liability for premises liability (second cause of action), but contends that defendant may be liable under Gov't Code section 845.6 for failure to summon medical care. However, the complaint does not allege facts showing that defendant knew or had reason to know of plaintiff's need for immediate medical care and failed to summon such care. Watson v. State of California (1993) 21 Cal.App.4th 836, 841-842 (liability under Gov't Code section 845.6 limited to those situations where public entity intentionally or unjustifiably fails to furnish immediate medical care). Plaintiff may file and serve an amended complaint no later than April 18, 2005. The minute order is effective immediately. No formal order pursuant to CRC Rule 391 or further notice is required. a Department 54 April 8, 2005 Page 7 ______________ *** ITEM 18 04AS05102 JUAN ENRIQUEZ, ET AL. VS. H & M ROOFING, INC., ET AL. Nature of Proceeding: Demurrer Filed By: CANDY, HEATHER S. Defendants' general and special demurrers to all causes of action in the complaint are overruled. Initially the Court addresses defendants' objection to plaintiffs' opposition on the ground that it was not filed and served nine court days prior to hearing in accordance with CCP section 1005, and further was served by regular mail rather than by a means calculated to ensure receipt by defendants by the next business day. Although the Court has discretion to refuse to consider late-filed and served papers, the Court declines to do so in this case. CRC Rule 317(d). As the issues presented in this case appear to be of first impression, the Court finds that justice is better served by a consideration of the demurrer on the merits. Further, despite their claim of prejudice, defendants did not request additional time to file their reply. Therefore, the opposition to the demurrer has been considered on its merit. Labor Code section 2699 became effective January 1, 2004. Section 2699 is known as the Labor Code Private Attorneys General Act of 2004 because it empowers aggrieved employees to collect civil penalties that previously could be collected only by the Labor and Workforce Development Agency ("LWDA") or its subsidiaries. The purpose of the statute was to punish, through the means of private enforcement, labor code violations that might not otherwise be detected by the State. Amendments to section 2699 became effective August 11, 2004, at the same time that section 2699.3 and section 2699.5 were added to the Labor Code. The effect of the amendments was to impose limits on private lawsuits to collect penalties pursuant to section 2699(a) and (f) by requiring plaintiffs to exhaust administrative remedies. Section 2699(g)(1). Section 2699.3 requires that prior to filing a lawsuit to collect civil penalties pursuant to section 2699(a) or (f), plaintiffs must give notice of the alleged violations to the employer and to the LWDA; a 30-day waiting period is imposed to give the LWDA the opportunity to investigate and pursue a citation against the violating employer. Section 2699.5 enumerates the Labor Code provisions that are subject to the exhaustion requirement of section 2699.3. Plaintiffs' first cause of action alleges that the defendants violated California Labor Code section 226 by failing to provide the plaintiffs with accurate wage stubs. Section 226(e) entitles the employee to "recover the greater of all actual damages" or a penalty described therein. The defendants contend that because section 226 is listed in Labor Code section 2699.5, the administrative remedies required by Labor Code section 2699.3 must be exhausted before a civil action may be commenced. However, the actual damages or even the penalties described in section 226(e) are not recoverable by the LWDA or any subdivision thereof; they can only be recovered by an employee. Therefore, the exhaustion requirements of section 2699.3 do not apply to claims under Labor Code section 226(e). (Section 226.3 does allow the Labor Commissioner to collect a civil penalty from any employer who violates section 226(a). Section 2699(a) would apply to penalties sought pursuant to section 226.3; however, the complaint does not seek such penalties.) As plaintiffs have stated a cause of action under section 226 that does not require exhaustion of administrative remedies, the demurrer on the ground of failure to exhaust administrative remedies is overruled. The second cause of action alleges that the defendants violated Labor Code section 510 by not paying overtime compensation to the defendants for work in excess of 8 hours per day and 40 hours per week. Section 510 does not provide for a civil penalty. Labor Code section 1194 creates a private right of action for the aggrieved employee to recover the "unpaid balance" of the overtime compensation. Section 1194 also does not provide for a civil penalty. Under these provisions, there is no civil penalty that could be collected by the LWDA. A claim only for unpaid wages and interest would not require administrative exhaustion under section 2699.3. The second cause of action also seeks "waiting time" penalties for alleged violations of Labor Code section 203. These penalties are civil penalties that could be assessed and collected by the LWDA, and thus are subject to the exhaustion requirement of section 2699.3. This does not mean, however, that the demurrer must be sustained, as plaintiffs have stated a cause of action to the extent that they seek unpaid wages and interest. The demurrer to the second cause of action is therefore overruled. The third cause of action alleges that the defendants required the plaintiffs to work through rest periods as required by Labor Code section 226.7 and mandated by the Industrial Welfare Commission's Industrial Wage Order-16. Section 226.7(b) requires that an employer who violates the section "pay the employee one additional hour of pay at the employee's regular rate of compensation" for each day that the rest period is not provided. Plaintiffs contend that this provision is a wage, not a penalty, and therefore does not fall under sections 2699 et seq. Plaintiffs are incorrect: this is a penalty. However, this is not a penalty that might be collected by the LWDA. Section 226.7 states that a violating employer must pay the employee the penalty. This penalty could not be collected by the LWDA. Therefore, section 2699 does not apply to this penalty; the defendants' demurrer to the third cause of action is overruled. The fourth cause of action alleges that the defendants secretly paid the plaintiffs a lower wage rate than the parties had agreed upon and was required by statute. This would be a violation of Labor Code section 223. Section 223 does not provide for a civil penalty. Labor Code section 225.5 provides a civil penalty for violation of section 223 to be collected by the Labor Commissioner. Any attempt to recover the civil penalty described in section 225.5 would be subject to section 2699(a), and thus the requirements of section 2699.3. However, the plaintiffs may state a cause of action for the unpaid wages without claiming the penalties under section 225.5. Because the plaintiffs have sufficiently stated a cause of action that is not subject to the exhaustion of administrative remedies requirement of section 2699.3, the defendants' demurrer to the fourth cause of action is overruled. Plaintiffs' fifth cause of action alleges a violation of Business and Professions Code section 17200. Plaintiffs allege various violations of the Labor Code and IWC Wage Orders as well as fraud. These acts could constitute unfair business practices under section 17200. Business and Professions Code section 17200 is not subject to the exhaustion of administrative remedies requirement of Labor Code section 2699.3, the ground upon which the defendants base their demurrer. The demurrer to the fifth cause of action is therefore overruled. Defendants additionally demur to each cause of action on the ground of uncertainty. Defendants contend that each cause of action, individually, is uncertain because the captions of the causes of action do not list the defendants against whom each cause of action is alleged in violation of CRC 312(g). However, "although inconvenient, annoying and inconsiderate, the lack of labels for the plaintiff's causes of action does not substantially impair [the defendants'] ability to understand the complaint." Williams v. Beechnut Nutrition Group, Inc. (1986) CA 3d at 139. The general reference to "defendants" is sufficiently certain as to put all defendants on notice that each cause of action is aimed at each defendant. CRC 312(g) only applies if less than all parties on either side are affected by a specific cause of action. That is not a claim asserted by the defendants here. Defendants' demurrer as to each cause of action for uncertainty is overruled. Plaintiffs' request for judicial notice is granted. Defendants shall file and serve their answer no later than April 18, 2005. The minute order is effective immediately. No formal order or further notice is required, the tentative ruling providing sufficient notice. ja/a Department 54 April 8, 2005 Page 8 ______________ *** ITEM 19 04AS05102 JUAN ENRIQUEZ, ET AL. VS. H & M ROOFING, INC., ET AL. Nature of Proceeding: MOTION TO STRIKE Filed By: CANDY, HEATHER S. Defendants' motion to strike is denied. The notice of motion identifies the grounds for the motion as failure to state facts sufficient to constitute a cause of action. Failure to state a cause of action is not a proper ground for a motion to strike. CCP 436. In any event, as the motion to strike merely duplicates the demurrer, it is denied for the same reasons the demurrer was overruled. Defendants shall file and serve their answer no later than April 18, 2005. The minute order is effective immediately. No formal order or notice is required, the tentative ruling providing sufficient notice. ja/a *** ITEM 20 05CS00040 KALI J. HAYWOOD VS. ELK GROVE UNIFIED SCHOOL Nature of Proceeding: PT FOR ORD RELVG PET FROM PROV Filed By: GARCIA, J. LUIS This matter was continued for further briefing by the parties on the effect of the petition filed on January 13, 2005. Having considered the supplemental briefs as well as all papers in the Court's file, the Court finds the petition filed on January 13, 2005 was timely despite the erroneous designation of the hearing date. The purpose of a petition is to commence a special proceeding, in the same manner as a complaint commences an action. E.g. Jefferson v. County of Kern (2002) 98 Cal.App.4th 606, 617. The contents of a petition for relief from claim filing requirements are governed by Gov't Code section 946.6(b). That subsection also requires the petition to be filed within six months after the application to the public entity is denied or deemed denied. Notice of hearing on the petition is governed by Gov't Code section 946.6(d). That subsection does not require that a hearing be held within a certain time. It merely requires that the petition and notice of hearing be served as prescribed by CCP section 1005. Notice can be provided under Gov't Code section 946.6(d) by serving either a copy of the petition and a separate written notice, or by setting forth the hearing date and time on the petition itself. Regardless of the manner of notice used, the petition has a function independent of providing notice of a hearing. Gov't Code section 946.6(e)(requiring the court to make an independent determination on the petition). Thus, the order of February 7, 2005 dropping the hearing for insufficient notice reached only the adequacy of notice as provided on the petition filed on January 13, 2005; the ruling would have been the same had separate written notice been served. The ruling did not purport to dismiss the petition or otherwise rule on its merit. The petition remains valid as a pleading commencing this proceeding, and petitioner having provided sufficient notice of this hearing, the merits of the petition may be considered. As stated in the previous tentative ruling, the application to present late claim should have been granted as it was presented within one year of accrual of a minor's cause of action. Hernandez v. County of Los Angeles (1986) 42 Cal.3d 1020, 1030. As the Hernandez Court recognized, a reasonable time requirement is applicable to the claims of minors, but because of the "special solicitude for late claims filed on behalf of minors," that requirement is satisfied by filing the claim within one year of the accrual of the minor's cause of action. Id. at 1029. As that requirement was met here, the petition is granted. The minute order is effective immediately. No formal order pursuant to CRC Rule 391 or further notice is required. a Department 54 April 8, 2005 Page 9 ______________ *** ITEM 21 05CS00196 IN RE: CHRISTINE JOY NOGA Nature of Proceeding: Petition For Change Of Name Filed By: NOGA, CHRISTINE JOY The petition is unopposed and is granted. a *** ITEM 22 05CS00224 IN RE: JOSE ANTONIO ESPINEL III Nature of Proceeding: Petition For Change Of Name Filed By: ESPINEL, JOSE ANTONIO III The petition is unopposed and is granted. a *** ITEM 23 05CS00226 IN RE: BRANDON LEE DEEVER Nature of Proceeding: Petition For Change Of Name Filed By: DEEVER, BRANDON LEE The petition is unopposed and is granted. a *** ITEM 24 05CS00256 IN RE: KEVIN MARTINEZ Nature of Proceeding: PT FOR APPR FOR TRANSFR OF STR STLMT PAYMENT RIGHTS Filed By: AHTIRSKI, EUGENE A. The petition is denied. Under all of the circumstances of this case, the Court does not find that the transfer is in the best interest of the transferee. a Department 54 April 8, 2005 Page 10 ______________ *** ITEM 25 05CS00276 IN RE: VINVENT WILSON Nature of Proceeding: PET FOR APPR FOR TRANSF OF STRUCTURED STLMT PAYMENT RIGHTS Filed By: AHTIRSKI, EUGENE A. The petition is unopposed and is granted. *** ITEM 26 01AM00130 HARLEY OSBORN VS. JOSIF BENTEU, ET AL. Nature of Proceeding: DEFAUTL HRG (MARCEL NITA) Filed By: FIELDS, W. RUSSELL Appearance Required. *** ITEM 27 01AM00130 HARLEY OSBORN, VS. JOSIF BENTEU, ET AL. Nature of Proceeding: DEFAULT HRG (MARIANNA BROTNEI) Filed By: FIELDS, W. RUSSELL Appearance Required. *** ITEM 28 99AM03712 BAY AREA CREDIT SVC., INC. VS. GEMMA L. ARCHIBALD, ET AL Nature of Proceeding: CLAIM OF EXEMPTION Filed By: MILLER, GREGORY J. The claim of exemption is denied. The claim of exemption is based on the fact that the earnings of the judgment debtor are needed for his/her support or the support of his/her family. An exemption on that ground is not available since the underlying judgment is for telephone services, which constitutes a debt incurred for the common necessaries of life. C.C.P.  706.051(c)(1); J.J.MacIntyre Co. v Duren (1981) 118 C.A.3d Supp. 16. However, the judgment creditor is willing to accept a lesser amount than it is entitled to garnish. The Sheriff is therefore directed to garnish $50 per pay period from the judgment debtor's earnings and return to the judgment debtor forthwith all funds withheld in excess of that amount. a Department 54 April 8, 2005 Page 11 ______________ ***