&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 SHELLEYANNE W L CHANG, Judge R. ROUSE, Clerk V. CARROLL, Bailiff April 22, 2005, 09:00 ITEM 1 02AS01083 KOFI OPONG-MENSAH VS. WARREN CURTIS STRACENER, ET AL č Nature of Proceeding: MT TO SET ASIDE JUDGMENT CONFIRMING AWARD OF SCTNS ON APPEAL Filed By: OPONG-MENSAH, KOFI This matter is continued on the Court's own motion to May 4, 2005 so that it can be heard by Judge Cecil, who signed the judgment at issue in this motion. a *** ITEM 2 03AS00324 PAUL GREGORY WALTERS, ET AL VS. SUTTER HEALTH, ET AL Nature of Proceeding: Motion For Summary Adjudicatio Filed By: FINCH, STEVEN H. Defendants Sutter Health and Sutter Health Sacramento Sierra Region's motion for summary adjudication of the third cause of action for negligence is unopposed and is granted. Plaintiff alleges in the third cause of action of the first amended complaint that defendants failed to establish, comply with and monitor appropriate infection control policies, standards and procedures, and otherwise failed to act within the standard of care, causing injury to plaintiff. Defendant has produced evidence that the treatment of plaintiff, including multiple surgeries following his automobile accident, was within the standard of care and that the infection he subsequently developed was of a type that is a natural outgrowth of the substantial orthopedic trauma plaintiff suffered in the automobile accident. This evidence is sufficient to meet defendants' initial burden, shifting the burden to plaintiff to produce evidence raising a triable issue of material fact. Having filed no opposition to this motion, plaintiff has not met his burden. Defendants shall submit a formal order complying with CRC Rule 391 and CCP section 437c(g) for the Court's signature. a Department 54 April 22, 2005 Page 2 ______________ *** ITEM 3 03AS00720 HSG AUTH OF CTY OF SAC VS FRANKLIN VILLA ESTS UNIT #2 HO ASS Nature of Proceeding: MOTION TO DISMISS Filed By: CHISUM, WILLIAM T. Dropped. *** ITEM 4 03AS01630 ANTHONY ANDRE SHARP VS. JOSEPH BICK, ET AL Nature of Proceeding: MT FOR EXP WITNESSESS TO BE ADDED TO WITNESS LIST FOR TRIAL Filed By: SHARP, ANTHONY A. Plaintiff's motion for expert witnesses to be added to plaintiff's witness list for trial is indecipherable. Plaintiff is entitled to call expert witnesses pursuant to the procedures set forth in CCP section 2034. As the Court cannot determine what relief plaintiff is seeking, the motion is dropped from calendar. a *** ITEM 5 03AS02674 CYNTHIA BROWN VS. GOLSHANI MOHAMMAD, ET AL Nature of Proceeding: MOTION TO VACATE JUDGMENT Filed By: BROWN, CYNTHIA Plaintiff's motion to vacate judgment on arbitration award is denied. Judgment was entered on March 22, 2004. Plaintiff filed a request for trial de novo months later on August 12, 2004. Plaintiff asserts that the failure to file a timely request for trial de novo was due to mistaken advice from an unnamed legal advisor. The basis for this motion would fall within CCP section 473, for relief from judgment taken against a party as a result of that party's mistake, inadvertence, surprise, or excusable neglect. However, relief under secton 473 must be sought within six months of the entry of judgment. This motion was not filed until more than one year after entry of judgment, and therefore is too late. (The Court notes that plaintiff filed a prior motion to vacate judgment on September 29, 2004, which was dropped for inadequate service. Even if service had been proper, the prior motion was also filed beyond the six-months time limit and therefore would have also been denied on the merits.) The minute order is effective immediately. No formal order pursuant to CRC Rule 391 or further notice is required. a Department 54 April 22, 2005 Page 3 ______________ *** ITEM 6 03AS05470 LISA STEELE VS. YOUTHFUL OFFENDER PAROLE BOARD, ET AL Nature of Proceeding: Summary Judgment Filed By: Judge Chang discloses that her husband is a Deputy Attorney General who works full-time as special counsel to the California Student Aid Commission (CSAC). He works at CSAC through an inter-agency agreement between the California Attorney General's Office and CSAC whereby CSAC reimburses the Attorney General's Office for his salary and benefits costs. Defendants Youthful Offender Parole Board, Tony Peacock and Susan Wallace's motion for summary judgment or alternatively summary adjudication is granted as to defendants Wallace and Peacock, and is otherwise denied. The first amended complaint alleges that defendants retaliated against plaintiff by forcing her resignation on the ground that she was a potential witness on a co-worker's sexual harassment complaints against a member of defendant's board of directors. Defendants contend that plaintiff cannot show protected conduct or adverse employment action. Defendant has produced the following evidence. Plaintiff was employed as an office assistant beginning in January 2001. Later that year plaintiff participated in three bikini contests sponsored by a radio station. Former Chairman Raul Galindo attended the third contest in mid-October. When plaintiff and her boyfriend approached Galindo after the event, Galindo hugged plaintiff and kissed her on the cheek. Plaintiff did not complain to her supervisor, Staff Services Manager Tony Peacock, about the incident, nor did she file a sexual harassment complaint against Galindo. Plaintiff voluntarily submitted a letter of resignation on February 26, 2002, to be effective February 28, 2002. This evidence is sufficient to meet defendants' initial burden, shifting the burden to plaintiff to produce evidence raising a triable issue of material fact. Plaintiff has produced the following evidence. Peacock questioned plaintiff about the Galindo incident shortly after it happened. In early February 2002 YOPD received DFEH complaints by one of plaintiff's co-workers charging sexual harassment by Galindo. The co-worker also complained that she was retaliated against for talking with Peacock about the incident involving plaintiff and Galindo. In late January or early February 2002 Peacock met with plaintiff concerning the co-worker's complaints about Galindo and questioned plaintiff about the incident involving plaintiff and Galindo. Plaintiff told Peacock that Galindo tried to kiss her on the mouth, but she turned to receive it on her cheek instead. Peacock told plaintiff to write a memo about the incident but omit that Galindo tried to kiss her. Disputed fact no. 22. Around this time Peacock also told plaintiff that he had transferred the co-worker because of her sexual harassment claims against YOPB and Galindo. In another meeting in mid-February 2002 Peacock told plaintiff that it would be in her best interest to find another job because it would look bad for her to still be in the office during the investigation of the co-worker's sexual harassment complaints, as she would be a potential witness. To induce her to leave, Peacock promised plaintiff he would find another job for her in a different state agency if she tendered her resignation. Disputed fact no. 22. Plaintiff felt she was being over-supervised and further that she was being pressured to lie about the Galindo incident. Disputed fact no. 38. She submitted a letter of resignation on February 26, 2002. The same day Peacock instructed her to prepare a memo denying that Galindo tried to kiss her, and further stating that the co-worker lied to Peacock about the incident. Disputed fact no. 21. This evidence is sufficient to raise a triable issue of material fact as to whether plaintiff was pressured and/or induced to leave her employment because she was a potential witness in an investigation of the co-worker's sexual harassment complaints against Galindo. 2 Cal.Code Regs. section 7287.8(a)(2)(B)(protected activity includes involvement as a potential witness which employer perceives asd participation in an activity of the DFEH or FEHC); and see Lujan v. Minagar (2004) 124 Cal.App.4th 1040 (unlawful to preemptively retaliate based on fear that employee might file complaint). Plaintiff's objection no. 5 (Steele depo., at 141:22-142.5) is sustained; the remaining objections are overruled. Defendants objections are sustained as to the following, and are otherwise overruled: Lisa Steele depo. (Exhibit A to Poidmore decl., all further exhibit references are to Poidmore decl.) 216:19-217:12 and 232:4-233:18; Lisa Steele depo in Walden-Kaslar case (Exhibit B) 110:2-10 and 119:14-16; Plaintiff's Answers to Interrogatories (Exhibit C), no. 1 at p. 3:14-16, no. 39 at p. 8:20-21; Kaslar depo. (Exhibit E) 72:11-74:24, 82:2-9, 90:3-91:10, 123:11-18, 292:1-25, 592:5-15, 593:14-594:16; Galindo depo. (Exhibit J) 12:3-11; Exhibits L, O and S. Defendant's request for judicial notice is granted. Plaintiff is directed to submit a formal order complying with CCP section 437c(g) and CRC Rule 391 for the Court's signature. a Department 54 April 22, 2005 Page 4 ______________ *** ITEM 7 03AS05962 DENISE RUSSEL VS. CAROL ANN RUNGE Nature of Proceeding: Filed By: This matter is continued on the Court's own motion to May 24, 2005. No memorandum of points and authorities was filed with the moving papers, nor was the document served on plaintiff. See plaintiff's statement of opposition. Further, although defendant references a declaration filed with the moving papers, the Court does not have that declaration. As no proof of service is attached to the moving papers or filed separately, the Court cannot determine what papers were intended to be included with the moving papers. The only documents in the Court's file are the notice of motion, separate CRC Rule 335 statement, and request for judicial notice. In any event, to assist in the resolution of this discovery dispute on its merits, counsel for defendant is granted leave to file and serve her memorandum of points and authorities and her declaration in support of the motion no later than April 25, 2005. Plaintiff may file and serve a responsive memorandum of points and authorities and declaration, if any, no later than May 2, 2005. The parties are strongly urged to use the interim to further meet and confer to narrow the issues before the Court. Upon initial review of the separate statements, it appears to the Court that plaintiff's objections on the ground that the discovery requests are vague and ambiguous, aside from any issue of timeliness, are not well-taken. It also appears to the Court that some of the information sought in the interrogatories (such as addresses and telephone numbers of witnesses) has been supplied to the defendant. The Court believes issues such as these can be resolved by the parties without the intervention of the Court. To that end, the parties are further directed to file supplemental declarations describing their meet and confer efforts and a joint CRC Rule 335 statement describing the issues that remain for resolution by the Court. The supplemental declarations and joint CRC Rule 335 statement may be filed and served no later than May 16, 2005. a Department 54 April 22, 2005 Page 5 ______________ *** ITEM 8 03AS06722 TAMARA L. RAWLINGS VS. EDWARD ALBERT BAUMAN, ET AL Nature of Proceeding: Demurrer Filed By: WILKINSON, SUSAN L. Dropped. *** ITEM 9 03AS07112 KENNETH SEVIER VS. COUNTY OF SACRAMENTO, ET AL Nature of Proceeding: Summary Judgment Filed By: DAVIS, JAMES MICHAEL Defendants County of Sacramento and Josh Telliano's motion for summary judgment is unopposed and is granted. The complaint alleges that defendant Telliano injured plaintiff in the eye during plaintiff's incarceration, and that plaintiff did not receive adequate medical attention for the injury. Defendants have produced evidence that defendant Telliano did not cause any of the injuries alleged in the complaint and that his treatment of plaintiff was reasonable at all times. Further, medical care was provided to plaintiff on the same day that he was injured; plaintiff regards the doctor who treated him as competent. Plaintiff was under the care of and in the presence of a medical doctor when his eye bandage was removed the following day. This evidence is sufficient to meet defendants' initial burden on all causes of action, shifting the burden to plaintiff to produce evidence raising a triable issue of material fact. Having filed no opposition to this motion, plaintiff has not met his burden. Defendants are directed to submit a formal order complying with CCP section 437c(g) and CRC Rule 391 and a judgment for the Court's signature. a *** Department 54 April 22, 2005 Page 6 ______________ ITEM 10 04AS02526 KITEAU LOLOHEA, ET AL VS. RICHARD CONDIE, ET AL Nature of Proceeding: MOT FOR ORDER QUASHING DEPOSITION SUBPOENAS Filed By: BYERS, DAVID W. Plaintiff's motion for order quashing deposition subpoena is granted. The subpoena seeks "any and all documents concerning Kiteau Lolohea and/or Teu Lolohea's CalWorks application and records and/or food stamp application and records including, but not limited to, documents providing the amount paid by Kiteau Lolohea and/or Teu Lolohea for rent or mortgage including supporting documents such as rent or mortgage receipts or statements, utility bills or other documents." These documents are confidential and not discoverable under Welf. & Inst. Code section 10850, which protects from disclosure all confidential applications and records concerning any individual for any purpose not directly connected with the administration of a public social services program. Jonon v. Superior Court (1979) is inapposite. There, the issue was whether a social worker could be compelled to testify concerning a telephone conversation she overheard, which the Court found not to be confidential information within the meaning of section 10850. Plaintiff's request for attorney fees is denied. CCP section 2023(d) requires that any request for sanctions identify the person(s) against whom sanctions are sought in the notice of motion. The caption of the notice of motion identifies defense counsel Helen V. Powers as the person against whom sanctions are sought, but the body of the notice of motion identifies "Plaintiffs" as the persons against whom sanctions are sought. This ambiguity deprives opposing party of proper notice. The notice of motion also fails to identify the authority under which sanctions are sought. The minute order is effective immediately. No formal order pursuant to CRC rule 391 or further notice is required. a/al *** ITEM 11 04AS04134 ARC COMF SYS USA IN ETAL VS. THE CREST AT FAIR OAKS LLC ETAL Nature of Proceeding: Demurrer Filed By: BROWN, A. SCOTT Continued to 06/16/2005 Department 54 April 22, 2005 Page 7 ______________ *** ITEM 12 04AS04134 ARC COMFORT SYSTEMS USA, INC. VS. THE CREST AT FAIR OAKS LLC Nature of Proceeding: MOTION TO STRIKE Filed By: BROWN, A. SCOTT Continued to 06/16/2005 *** ITEM 13 04AS04494 JAMES G. SHAW VS. M & M STONE, INC. ET AL Nature of Proceeding: Demurrer Filed By: RISHWAIN, DOUG Defendant M&M Stone, Inc.'s demurrer is sustained without leave to amend for failure to state facts sufficient to constitute a cause of action. Plaintiff seeks to quiet title. He alleges that at some time between February and September 8, 1995, he and his spouse at the time orally agreed that, as part of their division of community property, he would relinquish to her his interest in a business called Sierra Soft Spa and she would relinquish to him her interest in the real property at issue in this matter. Plaintiff did relinquish his interest in Sierra Soft Spa in April of that year. His former spouse, however, refused to relinquish her interest in the real property until ordered to do so by the court in 2003. Plaintiff then recorded a "spousal grant deed" in December 2003. In the meantime, in December 1995, Stone recorded an abstract of judgment against plaintiff's former spouse, dba Sierra Soft Spa, that had been entered on September 27, 1995. On the face of the complaint, then, plaintiff relies upon an oral transformation of the real property, which allegedly occurred prior to entry and recordation of the $5,021 judgment. According to plaintiff, part performance and equitable estoppel prevent Stone from invoking the writing requirement of either the Statute of Frauds or Family Law Code section 852. The latter states that a transmutation of real property "is not valid unless made in writing." Id. Although plaintiff's former spouse may be precluded from invoking a writing requirement, that is not the case with Stone, which could not have had notice in 1995 of a property transfer not recorded until 2003. Section 852 specifically states that "a transformation of real property is not effective as to third parties without notice thereof unless recorded." Id., subd. (b). Further, although the proffered defenses to the Statute of Frauds may be used to overcome the absence of a writing required by section 852, those defenses have no effect on a third party. Not one of the cases plaintiff cites holds otherwise. Plaintiff's allegations regarding the oral transmutation, the spousal grant deed, and its recordation are not susceptible to amendment. Therefore, leave to amend is denied. Plaintiff's citation to In re Marriage of Benson (2003) 114 Cal.App.4th 835, an unpublished opinion pursuant to CRC rule 976(d)(1), violates CRC rule 977(a). Defendant's papers do not comply with CRC rule 201(f)(1). Defendant's request for judicial notice does not comply with CRC rule 313(k). The notice of motion does not provide notice of the court's tentative ruling system as required by Local Rule 3.04(D). Moving counsel is directed to contact opposing counsel forthwith and advise them of Local Rule 3.04 and the court's tentative ruling procedure and the manner of requesting a hearing. Moving counsel is ordered to appear in person or by telephone in the event that opposing counsel appears for the hearing without prior request. Defendant shall prepare an order pursuant to CRC rule 391 and a judgment of dismissal for the court's signature. Department 54 April 22, 2005 Page 8 ______________ *** ITEM 14 05AS00844 KARIBU LLC VS. TYMANI INC., ET AL. Nature of Proceeding: MOTION TO DISQUALIFY Filed By: NGUYEN, LU T. Plaintiffs' motion to disqualify defendants' attorney of record is denied. Plaintiffs have not produced admissible evidence in support of their motion. Defendants' evidence establishes that there was only one meeting between defense counsel Richard D. Sopp and plaintiffs, and that defendants were also present at that meeting. During the course of that meeting, Mr. Sopp told plaintiffs he was representing defendants only, and that plaintiffs should seek independent counsel. No attorney-client relationship was established at the meeting, nor was confidential information provided to Mr. Sopp. Defendants' request for sanctions pursuant to CCP sections 128.5 and 128.6 is denied. CCP section 128.5 does not apply to any case filed after December 31, 1994, and CCP section 128.6 is not operative. The operative statute is CCP section 128.7, which requires a 30-day safe harbor and a separate motion for sanctions, neither of which is met here. The minute order is effective immediately. No formal order pursuant to CRC Rule 391 or further notice is required. a *** ITEM 15 05CS00194 IN RE: RANDALL CHASE EHENREICH Nature of Proceeding: Petition For Change Of Name Filed By: GROSS, KRISTY A. The petition is unopposed and is granted. a *** ITEM 16 05CS00282 IN RE: KENISHA THOMPSON Nature of Proceeding: Petition For Change Of Name Filed By: THOMPSON, KENISHA The petition is unopposed and is granted on condition that proof of publication is filed in Dept. 54 prior to hearing. a Department 54 April 22, 2005 Page 9 ______________ *** ITEM 17 05CS00290 IN RE: UGBOAKU CHINENYEROM KEMAKOLAM-UGORJI Nature of Proceeding: PETITION FOR CHANGE OF NAME Filed By: KEMAKOLAM-UGORJI, UGBOAKU C. The petition is unopposed and is granted. a *** ITEM 18 05CS00292 IN RE: ESPERANZA PADILLA Nature of Proceeding: Petition For Change Of Name Filed By: PADILLA, ESPERANZA The petition is unopposed and is granted. a *** ITEM 19 99AS00946 LOUISE M. DORRIS VS. BANK OF AMERICA Nature of Proceeding: MOTION FOR SANCTIONS Filed By: RICHARDSON, GREG J. Continued to 05/19/2005 *** ITEM 20 02AM03378 SYLVIA TRUJILLO VS. BILLY CONDON Nature of Proceeding: Motion To Withdraw Atty of Rec Filed By: SEREMAK, JANUSZ The motion to withdraw is unopposed and is granted. The Court will sign the formal order submitted with the moving papers. a Department 54 April 22, 2005 Page 10 ______________ *** ITEM 21 04AM03022 MICHAEL G. WILLIAMS, ET AL VS. MICHAEL L. DAVIS, ET AL Nature of Proceeding: Filed By: FINCH, GREGORY M. Dropped. ***