&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 AMOčUNTS 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 DAVID W. ABBOTT, Judge T. WEST, Clerk V. CARROLL, Bailiff April 14, 2005, 02:00 ITEM 1 00CS00981 THE PEOPLE OF THE ST OF CA. VS. 1992 FORD BRONCO, (YEE)_ Nature of Proceeding: Motion To Strike Filed By: LEONARD, STEPHANIE Petitioner's Motion to Strike Claim opposing forfeiture is unopposed and is granted. Real party in interest, who is represented by counsel, failed to comply with her discovery obligations and the court order of February 9, 2005 ordering her to respond to the discovery. The court finds this failure to be willfull and to warrant terminating sanctions. The claim is stricken and petitioner may seek a prove up hearing on the petition. The minute order is effective immediately. No formal order is required, however petitioner shall send a copy of the minute order to counsel for real party in interest. *** Department 53 April 14, 2005 Page 2 ______________ ITEM 2 03AS02903 ELIZABETH LEE VS. INFINITY-LEADER INSURANCE COMPANIES Nature of Proceeding: Motion To Compel Filed By: CHIDLAW, KEITH D. Defendant Infinity Insurance Company's Motion to Compel Verified Responses to Form Interrogatories Set Two, Special Interrogatories Set One, and Request for Production of Documents Set One is granted. Further, Defendant Infinity Insurance Company's Motion to Compel Responses to Special Interrogatories Set Two, Requests for Production of Documents Set Two and Requests for Production of Documents Set Three is granted. Plaintiff is ordered to serve responses under oath to defendant on or before April 25, 2005. Sanctions are denied because the motion was not opposed. Although CRC 341 purports to authorize sanctions if the motion is unopposed, the Court declines to do so, as the specific statutes governing this discovery [CCP 2030(k), 2031(1)] authorize sanctions only if the motion was unsuccessfully made or opposed. Any order imposing sanctions under the CRC must conform to the conditions of one or more of the statutes authorizing sanctions. Trans-Action Commercial Investors, Ltd. v Firmaterr Inc. (1997) 60 Cal.App.4th 352, 355. The minute order is effective immediately. No formal order or further notice is required, the tentative ruling providing sufficient notice. *** ITEM 3 03AS04055 IDA DEE GARRRETT, ET AL VS. BEAZER HOMES HOLDINGS CORP. ETAL Nature of Proceeding: Demurrer Filed By: O'MEARA, JOHN V. Demurrer by Cross-defendant Pacific Window Corp to the Cross-complaint of Defendant McBail Company is ruled on as follows: 3rd cause of action Breach of Contract: Overruled. The only argument made in support of the general demurrer to this cause of action is that it is a disguised claim for indemnity. Although this argument would be relevent as to what causes of action would survive after granting a motion for good faith settlement, this argument does not establish that no cause of action is stated at the pleading stage. Moving party has not addressed any other potential defect in this cause of action. 4th cause of action Breach of Express Warranty: Sustained with leave to amend to allow cross-complainant to allege notice to cross-defendant. 5th cause of action Breach of Implied Warranty: Sustained with leave to ament to allow cross-complainant to allege notice to cross-defendant. 6th cause of action Negligence: Overruled. The only argument made in support of the general demurrer is that it is really a claim for indemnity. Although this argument would be relevent as to what causes of action would survive after granting a motion for good faith settlement, it does not establish that no cause of action is stated. Moving party has not addressed any other potential defect in this cause of action. The motion to strike is granted as to all claims for attorneys fees except those sought under CCP 1021.6. Cross-complainant is given leave to amend to allege attorneys fees under CCP 1021.6 for the implied indemnity claim only. Cross-complainant may plead entitlement to the fees before it brings a motion. The minute order is effective immediately. No formal order or further notice is required, the tentative ruling providing sufficient notice. Department 53 April 14, 2005 Page 3 ______________ *** ITEM 4 03AS04055 IDA DEE GARRETT, ET AL VS. BEAZER HOMES HOLDINGS CORP. ETAL Nature of Proceeding: MOTION TO STRIKE Filed By: O'MEARA, JOHN V. See ruling in Item 3. *** ITEM 5 03AS04055 IDA DEE GARRETT, ET AL VS. BEAZER HOMES HOLDINGS CORP. ETAL Nature of Proceeding: APP LODGE OBJ TO CASE MNG ORD Filed By: KAVADI, ELLIE Dropped. *** ITEM 6 03AS04525 DIANE H. KIYOTA VS. JOHN A. STICCA Nature of Proceeding: Default Hearing Filed By: MARMAN, JOSEPH H. Appearance Required. *** ITEM 7 04AS03634 DOUGLAS MOYLES, ET AL VS. JOHNSON CONTROLS, INC., ET AL Nature of Proceeding: Demurrer Filed By: BLANCHARD-SAIGER, GAIL M. Defendant Johnson Controls, Inc.'s Demurrer to plaintiffs Douglas and Gina Moyles' First Amended Complaint is SUSTAINED, as set forth below, with leave to amend. Plaintiffs' amended complaint alleges eleven causes of action: the 1st for termination in violation of Labor Code section 2856, the 2nd for termination in violation of Labor Code section 1102.59(b), the 3rd for wrongful termination in violation of public policy, the 4th for retaliation including retaliation for complaining to a governmental agency, the 5th for retaliation in violation of Govt. Code section 12650, et seq., the 6th for wrongful employment harassment and retaliation in violation of a clearly stated policy, the 7th for intentional infliction of emotional distress the 8th for negligent retention and supervision, the 9th for ratification liability doctrine, the 10th for private attorney general statue and the 11th for loss of consortium. Plaintiffs concede that plaintiff Gina Moyles' only cause of action is the 11th for loss of consortium, thus the remaining causes of action are alleged on behalf of Douglas Moyles, only. The demurrer to the 1st cause of action for termination in violation of Labor Code section 2856, is SUSTAINED. It appears duplicative of the 3rd cause of action for wrongful termination in violation of public policy. Labor Code section 2856 does not provide a separate, private right of action, distinct from violation of public policy. The demurrer to the 2nd cause of action for termination in violation of Labor Code section 1102.59(b), is SUSTAINED. Defendant asserts that plaintiff has failed to allege compliance with Labor Code section 2699.3 by failing to plead that the aggrieved employee gave written notice to the Labor and Workforce Development Agency and exhausted his administrative remedies. Plaintiff requests leave to amend to amend to allege the same. The demurrer on the grounds that the cause of action is duplicative of the 3rd cause of action is overruled. Labor Code section 1102.5 provides different remedies. No demurrer is made to the 3rd cause of action for wrongful termination in violation of public policy. The demurrer to the 4th cause of action for retaliation including retaliation for complaining to a governmental agency, is SUSTAINED. Defendant demurs on the grounds of uncertainty as well as failure to state facts sufficient to constitute a cause of action. The allegations appear to be duplicative of the 5th cause of action for retaliation in violation of Govt. Code section 12650, et seq. The demurrer to the 5th cause of action for retaliation in violation of Govt. Code section 12650, et seq., is SUSTAINED. Defendant demurs on the grounds of failure to state facts sufficient to constitute a cause of action, as plaintiff has failed to allege the governmental agency to which the complaint was made, and that his employer was aware of such complaint, which is essential to establish a causal link. Morgan v. Regents of the University of California (2000) 88 Cal. App. 4th 52, 70. In opposition, plaintiff contends that he has alleged a cause of action under the False Claims Act under Govt. Code section 12650, et seq. However, no allegations have been made that plaintiff disclosed information to a government or law enforcement agency or furthered a false claims action. Govt. Code section 12653. The demurrer to the 6th cause of action for wrongful employment harassment and retaliation in violation of a clearly stated policy, is SUSTAINED. Plaintiff has failed to allege that he is a member of a protected class, and failed to allege that the harassment was not occasional, isolated, sporadic, or trivial; plaintiff has failed to allege 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. Nor has plaintiff adequately alleged that he was harassed or retaliated against for opposing discrimination against others. The demurrer to the 7th cause of action for intentional infliction of emotional distress is SUSTAINED. Plaintiff has failed to allege sufficient facts to support the conclusion that defendants' conduct was outrageous. Managing personnel is not outrageous conduct beyond the bounds of human decency, but rather conduct essential to the welfare and prosperity of society. A simple pleading of personnel management activity is insufficient to support a claim of intentional infliction of emotional distress, even if improper motivation is alleged. Janken v. GM Hughes Electronics (1996)46 Cal. App. 4th 55, 80. Defendant does not demur to the 8th cause of action for negligent retention and supervision. The demurrer to the 9th cause of action for ratification liability doctrine, is SUSTAINED. The allegations are uncertain and fail to state facts sufficient to constitute a cause of action. Plaintiff has failed to specify the conduct of Thomas which was ratified by defendant. To the extent that the conduct ratified is that set forth in other causes of action, the 9th cause of action is duplicative and superfluous. The demurrer to the 10th cause of action is SUSTAINED, without leave to amend. Plaintiffs concede that the 10th cause of action for private attorney general statue should be dismissed, as it is a vehicle for a post-trial motion for attorneys' fees. (Oppo. 4:20-21.) Plaintiff may file and serve a Second Amended Complaint not later than Monday, April 25, 2005. The responsive pleading shall be due filed and served 10 days thereafter (15 days if service is by mail). Although not required by California Rules of Court, or Local Rule, if the responsive pleading is a demurrer, moving party is requested to attach a courtesy copy of the Second Amended Complaint for the court. This minute order is effective immediately. No formal order nor further notice is required, the tentative ruling providing sufficient notice. 3634203 Department 53 April 14, 2005 Page 4 ______________ *** ITEM 8 04AS03963 SHARON HART VS. RAMIRO ZAVALA, ET AL Nature of Proceeding: Motion To Compel Filed By: JACKSON, CHARMANIE Defendant Ramiro Zavala a.k.a. David Zavala and David Chavez's Motion to Compel Responses to Form Interrogatories and Request for Production of Documents is granted. Plaintiff is ordered to serve responses under oath to defendant on or before April 25, 2005. Sanctions are denied because the motion was not opposed. Although CRC 341 purports to authorize sanctions if the motion is unopposed, the Court declines to do so, as the specific statutes governing this discovery [CCP 2030(k), 2031(1)] authorize sanctions only if the motion was unsuccessfully made or opposed. Any order imposing sanctions under the CRC must conform to the conditions of one or more of the statutes authorizing sanctions. Trans-Action Commercial Investors, Ltd. v Firmaterr Inc. (1997) 60 Cal.App.4th 352, 355. The minute order is effective immediately. No formal order or further notice is required, the tentative ruling providing sufficient notice. *** ITEM 9 04AS05093 JOHN A. LEWIS, JR. VS. JANICE LEWIS Nature of Proceeding: Demurrer Filed By: BAUMBERGER, ERNEST M. Defendant's demurrer is sustained on the ground this court has no jurisdiction over the administation of a trust which is a probate matter. Probate Code section 17200. This case is transferred to the Probate Department, Department 129, to be consolidated with 05PR00245, currently pending in the probate department. Plaintiff is complaining that defendant distributed to herself more than she was entitled under a document which appears to create a trust. The minute order is effective immediately. No formal order or further notice is required, the tentative ruling providing sufficient notice. Department 53 April 14, 2005 Page 5 ______________ *** ITEM 10 04CS01391 HARRAH'S OPERATING CO., INC., ET AL VS. MICHAEL J. MOORE Nature of Proceeding: OSC RE: SALE OF DWELLING Filed By: STEARMAN, JAMES A. OSC re sale of dwelling is dropped from calendar without prejudice. There is no proof of service of OSC and supporting documents on the judgment debtor (service to be personal or mail 30 days before the hearing.) CCP 704.770(b). Judgment creditor must also show service or posting of documents at the dwelling. *** ITEM 11 05CS00043 EIGHT YEAR OLD CHILD VS. SCOTT ERIC GMITTER, ET AL Nature of Proceeding: PET PERMITTING LATE CLAIM Filed By: WEBB, KERRIE Continued to 05/17/2005 *** ITEM 12 05CS00247 IN RE: FAUSTA ROMO SAUCEDA Nature of Proceeding: Petition For Change Of Name Filed By: SAUCEDA, FAUSTA ROMO Petition for Name Change is granted. *** ITEM 13 04AM02017 PACIFIC CREDIT EXCHANGE VS. LINDA EVANS, ET AL Nature of Proceeding: CLAIM OF EXEMPTION Filed By: BLUNDO, FRANK G. Claim of exemption is granted. Any amounts being retained by the levying officer shall be returned to the judgment debtor. Department 53 April 14, 2005 Page 6 ______________ *** ITEM 14 05AM00283 VARTAN GARBOUSHIAN, ET AL. VS. RONALD FERLAND, ET AL. Nature of Proceeding: Demurrer Filed By: GARCIA, JOHN P. Demurrer to the Complaint is sustained with leave to amend for failure to state a cause of action. Plaintiff is required to allege that it was a licensed contractor at the time it entered the contract and performed the work which required a license. The complaint fails to allege that plaintiff was licensed as required by B&P Code section 7031(a). Without this allegation, plaintiff has failed to allege all elements of his claims. Defendants' request for judicial notice is granted, of the certified document from the contractor's licensing board showing that the license number on the contract was no longer valid at the time the contract was entered. However, plaintiff may cure the defect by filing an amended complaint alleging the correct license number that was in effect after June 2004. Plaintiff may file and serve an amended complaint on or before April 28, 2005. Response to be filed and served within 10 days of service of the amended complaint, 15 days if served by mail. Although not required by rule or statute, if the response is a demurrer the court requests that defendant attach a copy of the amended complaint to the moving papers. The minute order is effective immediately. No formal order or further notice is required, the tentative ruling providing sufficient notice. ***