&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 AMOUNT S 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 LOREN E. MCMASTER, Judge C. BEEBOUT, Clerk V. CARROLL, Bailiff April 19, 2005, 02:00 ITEM 1 01AS04979 STEPHEN M. WALTRIP, ET AL VS. KEVIN B. KIMPERLIN, ET AL Nature of Proceeding: MOITON TO ENFORCE COMPLIANCE Filed By: SANGSTER, EDWARD P. Defendants' motion to compel third party, Seyfarth Shaw to comply with the subpoena is denied. The records sought are from plaintiffs' former attorneys who represented them in the negotiations with defendants. After the motion was filed, Seyfarth produced 95% of the documents and withheld only notes taken by counsel after the collapse of negotiations between the parties and in anticipation of litigation. These notes are properly withheld on the basis of the attorney client and work product privileges. This minute order ie effective immediately. No formal order is required, the tentative ruling being sufficient notice. *** Department 53 April 19, 2005 Page 2 ______________ ITEM 2 01AS04979 STEPHEN M. WALTRIP, ET AL VS. KEVIN B. KIMPERLIN, ET AL Nature of Proceeding: MOT FOR PROTECTIVE ORDER Filed By: SANGSTER, EDWARD P. Defendants' motion for a protective order is granted. Plaintiffs shall return the documents that are the subject of this motion with a declaration that they have not retained any copies, nor any other document, including personal notes, that reflect the content of the documents. These documents are privileged communications between the corporate defendant and their employees and their attorneys. The only exception was Nadgar but he was a necessary recipient. The content indicates that they were intended to be confidential communications. Defendant Cooke who is represented by other counsel declares he inadvertently disclosed the documents and did not intend to waive the attorney client privilege. The documents at issue were part of a voluminous production in September 2004 and were overlooked. Two months later defendants requested they be returned. Under the circumstances this was not an unreasonable delay. This minute order is effective immediately. No formal order is required, the tentative ruling being sufficient notice. *** ITEM 3 02AS05193 TERRY BURNETT, ET AL VS. SHAWKI FUDAIL, ET AL Nature of Proceeding: MOTION TRUTH OF MATTERS DEEMED ADMITTED Filed By: YOUNG, JULIA M. Dropped. The motion is not timely. It was served by mail on March 25, 2005. Motions must be filed and served 16 court days before the hearing plus five calendar days if served by mail in the State of California and 10 calendar days if served outside the State of California . CCP 1005(b). *** Department 53 April 19, 2005 Page 3 ______________ ITEM 4 03AS02823 RICHARD BEASLEY VS. SACRAMENTO MUNICIPAL UTILITIES DISTRICT Nature of Proceeding: Summary Judgment Filed By: SHEEHAN, NANCY J The court cannot rule on the summary judgment motion as the plaintiff is deceased and no personal representative has been substituted in his place. The case is transferred to Department 29, Case Management Program. *** ITEM 5 03AS05207 AMERICAN RIVER BANK VS. SELECT INCOME PROPERTIES 6, ET AL Nature of Proceeding: MOTION TO AMEND CROSS-COMPLAINT Filed By: HALL, MARCUS T. Defendant/cross-complainant Stenner Glen's motion for leave to amend the cross-complaint is granted. Stenner Glen seeks to add plaintiff Bank to the cross-complaint and allege one cause of action against it, revocation of acceptance of goods. This would permit Stenner Glen, if successful, to recover a refund for monies paid. Stenner Glen states it learned of this potential claim in December 2004 when discovery revealed that Bank treated the Stenner Glen lease as a sale, not a lease. Bank contends the terms of the agreement are plain; it is obviously a lease and an integrated agreement; and it would be subject to demurrer. It also contends it is prejudiced due to the close proximity of the trial date, May 16, 2005. Leave to amend is liberally granted and may be given at any time before the trial. Any prejudice to Bank is outweighed by prejudice to Stenner Glen if it is not allowed to plead this compulsory cross-complaint. Bank may demur to the cross-complaint and it may also move to continue the trial date or sever the cross-complaint against it. Stenner Glen shall file and serve its amended cross-complaint forthwith. This minute order is effective immediately. No formal order is required, the tentative ruling being sufficient notice. Department 53 April 19, 2005 Page 4 ______________ *** ITEM 6 03AS05745 MARIA D., ET AL VS. COMCAST CORPORATION, ET AL Nature of Proceeding: MOITON FOR PROTECTIVE ORDER Filed By: KEMP-WILLIAMS, MARGARET Comcast's motion for a protective order that the depositions of two vice presidents and a manager not be taken is granted. Plaintiff wants to depose these individuals regarding Comcast's policies on background checks and whether checks on direct hires are different than checks on non-payroll workers. She has already obtained information on Comcast's background checks on direct employees. Comcast's guidelines apply to direct hires, not non-payroll workers. Saravia was not a direct-hire employee; he was a non-payroll worker since he was the employee of Links. Plaintiff may be entitled to discovery related to the contract between Comcast and Links and whether Comcast (or its predecessor AT&T) negotiated with Links on how Links should conduct background checks. But none of these three individuials has any knowledge of the Links contract, subcontracts, subcontractors, or the employees of subcontractors, or background checks on non-payroll employees. None of them developed the policies and only one was involved in drafting guidelines for direct hires. Plaintiff has not shown good cause or any legally cognizable reason for why she should be permitted to take these depositons. This minute order is effective immediately. No formal order is required, the tentative ruling being sufficient notice. *** ITEM 7 03AS06643 JANICE MARIE CONROY VS. JAMES EDWARD SIVYER Nature of Proceeding: MOTION FOR PHYSICAL EXAMINATION Filed By: LONG, ERNEST A. Dropped. Department 53 April 19, 2005 Page 5 ______________ *** ITEM 8 04AS01253 GLENN BOYD, ET AL VS. INTEL CORPORATION, ET AL Nature of Proceeding: Summary Judgment Filed By: BROWN, WILLIAM M. Defendant Intel Corporation's Motion for Summary Judgment, or in the Alternative for Summary Adjudication of Issues as to plaintiff Darnita Ferguson, only, is granted. Defendant's Request for Judicial Notice is granted. The Court does not rule on plaintiff's objections to defendant's material facts. (Pltf.'s Obj., sections A-D, F, G.) Objections may be made to the admissibility of evidence only. The Court rules on plaintiff's objections to the Osuna Dec. and Exh. 1, Burley Dec., para. 25, Bradbury Dec., para. 23, are overrruled. The Court rules on Defendant's Evidentiary Objections to the Ferguson Dec. as follows: the objections to 2:6- 3:2, 3:11-12, 3:14-22, 4:3-4, 4:15-22, and the objections to the Boyd and Richardson-Stanford Depo. are sustained; the remainder of the objections are overrruled. Plaintiff Darnita Ferguson's complaint alleges five causes of action against Intel: the 1st for discrimination based upon race, the 2nd for discrimination based upon age, the 3rd for wrongful termination based upon race, the 4th for wrongful termination based upon age and the 7th for violation of Business & Professions Code section 17200. Defendant Intel moves for summary adjudication of each of those causes of action, and for summary adjudication of the claim for punitive damages. Plaintiff was hired by Intel in 1980 in the IT division. She was aware that Intel prohibited discrimination based on age and race, never complained of discrimination or harassment, or observed and conduct towards others based on age or race. (UMF 1-4.) Due to an economic downturn experienced by Intel in the spring of 2003, Intel was forced to reorganize with fewer workers. The reorganization valued breadth and diversity over specialization. Plaintiff was proficient in only two of the four production applications expected of an Operations Analyst, despite offers of training, discussions, evaluations and warnings regarding technical knowledge deficiencies. (UMF 22-45, 48-49.) Due to needed staff reductions, the skill sets of employees were evaluated against a combined skill set matrix. (UMF 67-69.) The scoring system was calibrated for consistency. Plaintiff was evaluated by a personal friend, whom plaintiff had no reason to believe was biased against her in any way. (UMF 73-77.) Plaintiff ranked 21st out of 25 people in the production unit. Those who did not receive top scores were redeployed. (UMF 81-83.) Plaintiff was notified that she had been selected for redeployment. (UMF 84.) Plaintiff admits that she is not aware of any reason for her deployment other than her low scores and ranking on the skills matrix. (UMF 89.) After redeployment, the new manager of the plaintiff's group was a 44 year old African American woman. (UMF 98.) Plaintiff's 1st and 3rd causes of action for race discrimination and 2nd and 4th causes of action for age discrimination are grounded in FEHA. Because of the similarity between state and federal employment discrimination laws, California courts look to pertinent federal precedent when applying our own statutes. California has adopted the three-stage burden-shifting test established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. Guz v. Bechtel Nat., Inc. (2000) 24 Cal. 4th 317, 354. The burden shifting analysis of is analyzed under a three-step framework. First, the plaintiff bears the initial burden of establishing a prima facie case of discrimination. The employer then must offer a legitimate nondiscriminatory reason for the adverse employment decision. Finally, the plaintiff bears the burden of proving the employer's proffered reason was pretextual. Williams v. General Motors Corp. (5th Cir. 1981) 656 F.2d 120, 129-130; Brundage v. Hahn (1997) 57 Cal.App.4th 228, 236. The employee cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent. Rather, the employee must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence, and hence infer that the employer did not act for the asserted non-discriminatory reasons. Hersant v. Department of Social Services (1997) 57 Cal. App. 4th 997, 1005. In a reduction in force situation, such as this case, plaintiff must establish a prima facie case by: (1) showing that she is within a protected group and that she has been discharged by defendant; (2) showing that she was qualified to assume another position at the time of discharge; and (3) producing evidence, circumstantial or direct, from which a factfinder might reasonably conclude that the employer intended to discriminate in reaching the decision at issue. Williams v. General Motors Corp. (5th Cir.1981) 656 F.2d 120, 129-130. Here, defendant asserts that plaintiff cannot establish the last two elements: she did not have the breadth of skills and experience needed and not other similarly situated persons were treated more favorably than she was. Intel has met its burden by articulating a legitimate reason for discharge. Thus, the presumption of unlawful discrimination "simply drops out of the picture," and Ferguson bears the ultimate burden of persuading the court that the stated reason for the discharge was false and the true reason for the discharge was unlawful discrimination. She must produce "specific, substantial evidence of pretext. An employee's subjective personal judgments of her competence alone do not raise a genuine issue of material fact. Bradley v. Harcourt, Brace & Co. (9th Cir., 1996) 104 F.3d 267, 270. In opposition, plaintiff asserts her belief that the skills matrix was developed to target certain individuals and then to justify the decisions that management made. (Ferguson Dec., para. 10.) The sole evidence in support of this is that the behavior of one individual (not her supervisor) changed shortly before the redeployment. (Ferguson Dec., para. 11.) However, plaintiff may not simply substitute her subjective opinion for management's judgment to create a triable issue of material fact as to pretext. Although plaintiff contends that four other individuals should have been redeployed before she was, their scores on the skills matrix were higher than plaintiff's. Plaintiff does not refute her lack of broad-based skills. (UMF 24.) No evidence is provided that age or race played any role in her skills rating. The attack on the process of skills rating and the manager's understanding of it fails to raise a triable issue of material fact as to age or race discrimination. The Court finds that no dispute as to any material issue of fact has been identified by plaintiff. The Business & Professions Code section 17200 cause of action falls with the other causes of action, as no other unlawful conduct is alleged. As summary adjudication of all cause of action by plaintiff Ferguson against Intel have been granted, the motion for summary judgment is also granted. The prevailing party defendant Intel is directed to prepare an order and judgment of dismissal for the Court's signature pursuant to C.C.P. section 437c(g) and C.R.C., Rule 391. 1253203 Department 53 April 19, 2005 Page 6 ______________ *** ITEM 9 04AS02299 HARBOR SPECIALTY INS. CO., ET AL VS. LUIS BEDOYA, ET AL Nature of Proceeding: Summary Judgment Filed By: ROSE, PATRICK G. Plaintiff's motion for summary judgment against defendant Bedoya is unopposed and granted. Defendant has admitted all liability and damages issues. Plaintiff's motion for an order that certain matters be deemed admitted was unopposed and granted on November 17, 2004, Plaintiff shall submit an order that complies with CCP 437c(g). The order submitted with the moving papers does not. *** ITEM 10 04AS02657 TIGER LEON EDWARDS VS. SVWB ARCHITECTS, ET AL Nature of Proceeding: Demurrer Filed By: DURKET, MATTHEW J. Defendants' demurrer is overruled. The basis for the demurrer is that the complaint is untimely because it was not filed within one year of the date plaintiff received a right to sue letter from the DFEH. Plaintiff did not file his complaint with the DFEH on March 18, 2003; he filed it on June 16, 2003 and received his letter on June 30, 2003. Thus, the complaint is timely. This minute order is effective immediately. No formal order is required, the tentative ruling being sufficient notice. *** ITEM 11 04AS03541 AARON D. LOOS VS. JESSE ROSETE, ET AL Nature of Proceeding: Demurrer Filed By: BAUMAN, JENNA H. Defendants' demurrer is unopposed, which is taken as a concession to its merits, and it is sustained without leave to amend. Plaintiff's claims have either been resolved by binding arbitration or belonged to plaintiff's bankruptcy estate. Defendants shall submit a formal order and judgment of dismissal. Department 53 April 19, 2005 Page 7 ______________ *** ITEM 12 04AS03611 REMCO TREFFKORN VS. JIM DAVISON, ET AL Nature of Proceeding: MOTION TO DISQUALIFY OPPOSING COUNSEL Filed By: GUSTAFSON, WILLIAM B. Plaintiff's motion to disqualify defense ocunsel who was previously plaintiff's attorney is granted. Defendants' attorney Warden previously represented plaintiff in Root International v Helios where plaintiff was a defendant. He also represented Helios. Warden was attorney for plaintiff and defendant EMC from 1994 to 1999. Warden argues that the Root case and this case are not related and that plaintiff was merely a "make weight" defendant in the Root case who was named in only one cause of action. The evidence before the court is otherwise. The Root litigation involved a dispute between Root, the distributor of Helios's software and Helios. EMC and plaintiff began selling Helios software in July 1994. He was the sole shareholder and officer of EMC until he sold it to Burns and defendant Davison in 2000. Plaintiff filed this action alleging defendants have not paid him in full. Defendants allege their failure to pay plaintiff is based on plaintiff's failure to accurately disclose the amount of debt owed by EMC to Helios at the time of the sale. Warden had access to plaintiff's records during the time he represented EMC and plaintiff and during the Root litigation. Those records necessarily relate to this litigation as it involves the debts of EMC. This action is related to the Root litigation. Outstanding debts from plaintiff and EMC to Helios would have arisen during the Root litigation. Also related is the business relationship between Helios and its resellers (here and in the Root litigation). The fact that no formal discovery was propounded to plaintiff during the Root action does not mean no confidential information was received from him. In addition, plaintiff and Warden shared office space and Warden provided plaintiff and EMC with legal services on an on going basis. Plaintiff is entitled to the presumption that confidential information passed from him to Warden during the Root litigation. Jessen v Hartford Casualty Insurance Co. (2003) 111 Cal.App.4th 698, 709. Plaintiff's evidence objections to the declaration of Warden are overruled. Although Warden does not state he has personal knowledge, as plaintiff's attorney in the Root litigation, he must necessarily have such knowledge. Plaintiff also objects to exhibits attached to the declaration as containing inadmissible hearsay but he has not directed the court's attention to any specific statements. The court will sign the formal order submitted with the moving papers. Department 53 April 19, 2005 Page 8 ______________ *** ITEM 13 04AS03611 REMCO TREFFKORN VS. JIM DAVISON, ET AL Nature of Proceeding: Motion To Strike Filed By: WARDEN, SCOTT C. Defendants' motion to strike certain allegations of the complaint is granted with leave to amend. The alleged wrong doing of Yates and Burns who are not parties to the action does not appear to be relevant to the claims against Davison. They cannot support a claim for punitive damages against Davison and they are not necessary for plaintiff's claims for conversion and breach of contract. However, some of the allegations may be relevant to the issue of the statute of limitations on the fraud claim. For this reason, plaintiff is given leave to file an amended complaint. Plaintiff may file and serve a second amended complaint by April 29, 2005. Responsive pleadings shall be filed 10 days thereaftaer, 15 dyas if service is by mail. This minute order is effective immediately. No formal order is required, the tentative ruling being sufficient notice. *** ITEM 14 04AS04539 BRIAN L. WOODS VS. FOOD AND DRUG BRANCH, ET AL Nature of Proceeding: Demurrer Filed By: COLSON, TAMARA M. Plaintiff has not filed an opposition to defendant's demurrer to the first amended complaint. Instead he filed a second amended complaint without leave of court. Ordinarily, the court would refuse to consider such second amended complaint filed under these circumstances. However, defendants have requested 30 days to respond to the second amended complaint, which appears to be a reasonable solution. Defendants' request for 30 days to respond to the second amended comlaint is granted. Defendant shall file responsive pleadings by May 19, 2005. No further amended pleadings shall be filed without leave of court. This minute order is effective immediately. No formal order is required, the tentative ruling being sufficient notice. Department 53 April 19, 2005 Page 9 ______________ *** ITEM 15 04CS01331 BRIAN L. WOODS VS. FOOD & DRUG BR OF THE DIV OF FD & DRUG RA Nature of Proceeding: PET RELIEF FROM CLAIM REQ Filed By: SHAW, NYANZA Dropped. This petition is not necessary. Plaintiff is not required to file a claim under Government Code Section 911,2 when he has filed a complaint with the DFEH. *** ITEM 16 04CS01427 IN RE: SINGER ASSET FINANCE CO., LLC ET AL Nature of Proceeding: PET TRANSFER OF SETTLMNT PAYMNT Filed By: SHARAI, JOHN Z. The petition for approval of transfer of structured settlement is granted. Transferor proposes to transfer a pyament due March 12, 2013 in the amount of $$120,000 for payment of $26,000. Transferor is a construction worker who is currently unemployed. Unemployment is not related to the physical injury for which he received the settlement and he has no future medical needs. He has one dependent. Transferor intends to use the payment to pay off debts. The court finds it is in the best interests of transferor to transfer the lump sum pyament due in 2013. Transferee shall submit a formal order. *** ITEM 17 05AS00541 CRISTIAN LAVRIC, ET AL VS. A.S.A.P., ET AL Nature of Proceeding: MOTION TO APPOINT REFEREE Filed By: JOHNSON, STERLING C. Dropped. There is no proof of service of the summons and complaint or the motion in the court's file. CRC Rule 317(c). Department 53 April 19, 2005 Page 10 ______________ *** ITEM 18 05AS01097 JORDAN GLAZIER, ET AL VS. ASAP, INC. ET AL Nature of Proceeding: MOTION TO APPOINT REFEREE Filed By: JOHNSON, STERLING C. Dropped. There is no proof of service of the summons and complaint or the motion in the court's file. CRC Rule 317(c). *** ITEM 19 05AS01133 CATERPILLAR INC., ET AL VS. CA AIR RESOURCES BOARD Nature of Proceeding: Preliminary Injunction Filed By: MURRAY, ADAM Continued to 04/22/2005 *** ITEM 20 04AM00863 BERKLINE, LLC VS. MADAT INC., ET AL. Nature of Proceeding: MOTION THAT FACTS BE DEEMED ADMITTED Filed By: POLLAK, ROBERT Plaintiff's motion for an order that certain matters be deemed admitted is denied. Defendants served responses the day before the motion was filed. However, since no response was made until after the motion was filed, mandatory sanctions are ordered in the amount of $275,00. Sanctions shall be paid by May 19, 2005. Plaintiff's motion to compel responses to other discovery is granted. Defendants have provided responses but they did so after the motion was filed. Sanctions are denied as there is no substantive opposition to this part of the motion. This minute order is effective immediately. No formal order is required, the tentative ruling being sufficient notice. Department 53 April 19, 2005 Page 11 ______________ *** ITEM 21 04AM08783 KHAN & HILL, INC. VS. CHANGE TECHNOLOGY SOLUTIONS, INC. Nature of Proceeding: Motion To Withdraw Atty of Rec Filed By: RHODES, PHILIP J. The motion of counsel for plaintiff to withdraw as attorney of record is granted. The court will sign the order submitted with the motion. *** ITEM 22 04ED01683 STATE OF CALIFORNIA, ET AL VS. EBONY S. JENNINGS Nature of Proceeding: CLAIM OF EXEMPTION Filed By: KURTTILA, J. The claim of exemption is denied. The court is without jurisdiction to grant an exemption where, as here, the debt is incurred for the "common necessaries of life." CCP section 706.051(c)(1); J.J. MacIntryre Co. v. Duren (1981) 118 Cal.App.3d Supp. 16. The judgment creditor, however, will accept less than the maximum allowable amount. The sheriff is ordered to withhold $100.00 per pay period. Any amounts retained in excess thereof are to be returned to the judgment debtor. *** ITEM 23 04ED31309 STATE OF CALIFORNIA, ET AL VS. ERIN L. SINDONI Nature of Proceeding: CLAIM OF EXEMPTION Filed By: MCLAUGHLIN, L. The claim of exemption is denied. The court is without jurisdiction to grant an exemption where, as here, the debt is incurred for the "common necessaries of life." CCP section 706.051(c)(1); J.J. MacIntryre Co. v. Duren (1981) 118 Cal.App.3d Supp. 16. The judgment creditor, however, will accept less than the maximum allowable amount. The sheriff is ordered to withhold $112.00 per pay period. Any amounts retained in excess thereof are to be returned to the judgment debtor. Department 53 April 19, 2005 Page 12 ______________ ***