The minute order is effective immediately. No formal order by vos69278

VIEWS: 140 PAGES: 8

									                                                  NOTICE:
To request limited oral argument on any matter on this calendar, you must call the Court at (916) 874-7848
(Department 54) by 4:00 p.m. the court day before this hearing and advise opposing counsel. If no call is
made, the tentative ruling becomes the order of the court. Local Rule 3.04.

                                              Department 54
                                        Superior Court of California
                                         800 Ninth Street, 3rd Floor
                                      Shelleyanne W.L. Chang, Judge
                                          E. Higginbotham, Clerk
                                           V. Carroll, C.A., Bailiff

                                     Thursday, April 26, 2007, 9:00 AM

Item 1      03AS06054         GABRIELA GONZALEZ VS. EDUARDO DEL TORO, ET AL
            Nature of Proceeding: Motion for Relief from Default and Default Judgement
            Filed By:   Bullock, Patrea

            Defendant Manuel Aguilar, Jr.'s motion for relief from default and default judgment is
            denied. The Court does not find defendant's evidence that he did not know about the
            summons and complaint to be credible, especially in view of the declaration of
            Jeannette Kirby.

            The minute order is effective immediately. No formal order pursuant to CRC Rule
            3.1312 or further notice is required.


Item 2      04AS03756         JAMES SEIDEL VS. SACTO COUNTY SHERIFF'S DEPT., ET AL
            Nature of Proceeding: Summary Judgment
            Filed By:   Piering, Robert A.

            This matter is continued on the Court's own motion to 5/10/2007 at 09:00AM in this
            department.

            Plaintiff is directed to file a declaration from Dr. Carbonnell or other treating physician
            regarding his treatment plan. The declaration shall be filed in Dept. 54 and served no
            later than May 7, 2007.


Item 3      04AS03756         JAMES SEIDEL VS. SACTO COUNTY SHERIFF'S DEPT., ET AL
            Nature of Proceeding: Motion to Stay All Legal Proceedings
            Filed By:   Seidel, James Robert

            This matter is continued on the Court's own motion to 5/10/2007 at 09:00AM in this
            department.

            Plaintiff is directed to file a declaration from Dr. Carbonnell or other treating physician
            regarding his treatment plan. The declaration shall be filed in Dept. 54 and served no
            later than May 7, 2007.
Item 4   04AS03988         NICOLE LARKINS VS. MICHAEL STICKLES
         Nature of Proceeding: Motion To Compel Release of Medical Records
         Filed By:   Jacobson, Richard M.

         This matter is dropped from calendar.


Item 5   04AS05180         IRWIN BUSINESS FINANCE CORP VS. AMADOR SYS INTERN'L INC.ETAL
         Nature of Proceeding: Motion for Order for Post-Judgment Attorney's Fees
         Filed By:   Kritzer, David M.

         Plaintiff's motion for post-judgment attorney fees is unopposed and is granted in the
         amount of $1,417.50 for attorney fees and $77.50 for costs, for a total of $1,495.00.

         The minute order is effective immediately. No formal order pursuant to CRC Rule
         3.1312 or further notice is required.


Item 6   05AS03910         BRENDA DILLER VS. COLLINS MANOR ET AL
         Nature of Proceeding: Summary Judgment
         Filed By:   Morrison, Constance F.

                Defendants Collins Manor and Teresa Espinosa’s motion for summary judgment
         is granted.

                The complaint is for negligence and premises liability. Defendants present the
         following evidence. Espinosa owns Collins Manor, an assisted living center for the
         elderly. Espinosa occasionally hired Vaughn, her brother, to perform certain jobs on
         the premises, e.g., unclog toilets, fix leaky facets, mow the lawn, when Cortez, the
         regular maintenance man, was not scheduled to work. Espinosa paid Vaughn $75 to
         mow the lawn. Vaughn used his own lawnmower, which he had modified with a clamp
         to prevent it from stopping when the user let go of the push bar. Plaintiff, a minor at the
         time of her injury, asked Vaughn, her uncle, for work. Vaughn hired her to mow the
         lawn. While mowing the lawn, plaintiff slipped and fell. The clamp prevented the lawn
         mower from shutting off. Plaintiff’s foot slid under the mower and she was injured.

                The parties agree that plaintiff’s status with respect to Vaughn determines
         whether or not she may pursue her claim against these defendants. Defendants
         contend that plaintiff was Vaughn’s employee. Therefore, whether Vaughn was an
         independent contractor or defendants’ employee is irrelevant; plaintiff’s claim against
         defendant must fail in either case. In particular, according to defendants, if Vaughn
         was their employee and plaintiff was Vaughn’s employee, plaintiff would be defendants’
         employee and her injury would be covered by workers’ compensation. Plaintiff does
         not dispute this analysis. She concedes that Vaughn was defendants’ employee, but
         argues that she was an independent contractor with respect to Vaughn. Therefore, her
         claim is not precluded by workers’ compensation and she may proceed to trial.
         Defendants have the better argument.

                Defendants are correct that the question of whether an individual is an
                Defendants are correct that the question of whether an individual is an
         employee or an independent contractor is normally a question for the trier of fact.
         Where, however, only one inference may be drawn from the evidence before it, the
         court may determine the issue as a matter of law. Here, it is undisputed that plaintiff,
         like Vaughn, was not a licensed contractor. Lab. Code section 2750.5. Plaintiff uses
         Vaughn’s unlicensed status to argue that he was defendants’ employee, not an
         independent contractor. The same analysis must be used with plaintiff. “Section
         2750.5 unequivocally provides that a person lacking the requisite license may not claim
         to be an independent contractor.” Cedillo v. Worker’s Comp. Appeals Bd. (2003) 106
         Cal.App.4th 227, 233.

                 Further, even if plaintiff did not need a license, the analytical framework found in
         S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341,
         351, upon which plaintiff relies, would lead to the same conclusion. First, plaintiff was
         not “engaged in a distinct occupation or business.” Id. She asked Vaughn, her uncle,
         for work so that she could earn money for back-to-school clothing. She did not
         specifically ask him to mow the law. She had done other work at his “mom’s house
         where he lived . . . . Like doing dishes, laundry.” Second, plaintiff did not provide the
         lawn mower, Vaughn did. Third, mowing the law was part of Vaughn’s regular
         business, not plaintiff’s. Fourth, although the parties dispute whether Vaughn gave
         plaintiff any instructions or supervision, it is undisputed that plaintiff could not start the
         lawn mower by herself or keep it from stalling. Thus, Vaughn provided plaintiff at least
         some supervision regarding her use of the lawn mower. Finally, the skill required to
         mow a lawn is minimal. These undisputed facts necessarily lead to the conclusion that
         plaintiff was Vaughn’s employee for purposes of her mowing defendants’ lawn.
         Because plaintiff concedes that Vaughn was defendants’ employee, plaintiff was
         consequently their employee, too. As defendants’ employee, her loss is exclusively
         covered by workers’ compensation.

                Finally, Labor Code section 3352(h) does not apply. There is no evidence
         before the court that Collins Manor is a "residential dwelling." Lab. Code section 3351
         (d).

               Defendants’ request for judicial notice of Exhibits A and D attached to Morrison’s
         declaration is granted. Defendants’ deposition exhibits do not comply with CRC rule
         3.1116(c). Plaintiffs’ deposition exhibits do not comply with CRC rule 3.1116(a) and
         (c).

              Defendants’ counsel shall prepare an order pursuant to CCP section 437c(g)
         and CRC rule 3.1312, and a judgment for the court’s signature.



Item 7   06AS00324          JACQUELYN SILVERBUSH (A MINOR) ET AL VS. JAMES M. MOORFEILD
         Nature of Proceeding: Summary Judgment
         Filed By:   Sillis, John J.

         This matter is dropped from calendar.


Item 8   06AS02412          ALLISON ELLIS, ET AL VS. SUTTER HEALTH, ET AL
         Nature of Proceeding: Demurrer
         Filed By:   Doyle, Thomas J.
          Filed By:   Doyle, Thomas J.

          This matter is dropped from calendar.


Item 9    06AS02612         SHERIF ALY AMIN ET AL. VS. MICHAEL S. TANTRAPHOL ET AL.
          Nature of Proceeding: Motion To Compel Attendance at Deposition
          Filed By:   Riegles, David A.

          Defendants' motion to compel Anan Liddawi to appear for deposition and to produce
          documents is unopposed and is granted.

          Anan Liddawi shall appear for deposition on a date and time to be renoticed by
          defendants, and shall further produce the documents identified in the subpoena at the
          deposition.

          The minute order is effective immediately. No formal order pursuant to CRC Rule
          3.1312 or further notice is required.


Item 10   06AS03932         VICTORIA RICHINS, ET AL VS. SEAN MAJKOVICA, ET AL
          Nature of Proceeding: Motion To Withdraw Atty of Record
          Filed By:   Meshot, Peter A.

          The motion to withdraw by counsel for defendant is unopposed and granted. The Court
          will sign the formal order submitted with the moving papers. Counsel is directed to
          provide the last known telephone number for the client to the clerk of Dept. 54 prior to
          hearing.


Item 11   06AS04100         WILLIAM WOODEL, ETAL. VS. FOLSOM CORDOVA USD, ETAL.
          Nature of Proceeding: Motion to Deem Admitted Truth of Matters Specified in Request for Admissions
          Filed By:   Bragg, R. Lawrence

          This matter is dropped from calendar.


Item 12   06AS05448         JOHN M. O'DONNELL VS. PAUL KEMP
          Nature of Proceeding: Demurrer
          Filed By:   Robinson, Claudia J.

          Cross-defendant's demurrer to the second and third causes of action of the cross-
          complaint is sustained without leave to amend for failure to state a cause of action.
          The only damages alleged in these causes of action consist of the $27,473.50 unpaid
          attorney fees sought in the complaint. Cross-complainant's fraud and breach of
          contract theories are defensive in nature, i.e. reasons he is not obligated to pay the
          attorney fees sought in the complaint, rather than claims for affirmative relief against
          cross-defendant.

          Cross-defendant shall file and serve his answer to the remaining cause of action in the
          Cross-defendant shall file and serve his answer to the remaining cause of action in the
          cross-complaint no later than May 6, 2007.

          The minute order is effective immediately. No formal order pursuant to CRC Rule
          3.1312 or further notice is required.


Item 13   07AS00226         DONAHUE SCHRIBER REALTY GROUP VS. KALIM AZAD ET AL
          Nature of Proceeding: Default Hearing
          Filed By:   Wyatt, L. Kent

          Appearance required. Plaintiff shall be prepared to prove its damages with oral
          testimony and documentary evidence.


Item 14   07AS00384         DWIGHT WORDEN VS. MICHAEL CONNELL
          Nature of Proceeding: Demurrer
          Filed By:   Bonotto, Phillip R.

          This matter is dropped from calendar.


Item 15   07AS00384         DWIGHT WORDEN VS. MICHAEL CONNELL
          Nature of Proceeding: Motion To Strike Portions of Complaint
          Filed By:   Bonotto, Phillip R.

          This matter is dropped from calendar.


Item 16   04AM09940         J & L TEAMWORKS, INC. VS. LAURA BRANDON
          Nature of Proceeding: Motion To Withdraw Atty of Record
          Filed By:   Pacheco, Charles A.

          The motion to withdraw by counsel for defendant is unopposed and granted. Counsel
          is directed to submit a completed formal order for the Court's signature. The formal
          order should have been lodged with the Court and served on the client with the moving
          papers. CRC Rule 3.1362(e).




Item 17   05AM05156         CRED. TRADE ASSOC. INC., ET AL VS. ATLAS BAIL BONDS,INC.ETAL
          Nature of Proceeding: Motion for Order Vacating Dismissal
          Filed By:   Kappos, Stephen M.

          This matter is hereby transferred to Dept. 39. Moving party is directed to call the clerk
          of Dept. 39 at (916) 874-7584 for a new date and time for hearing.


Item 18   06AM04318         NORTHERN VIDEO SYSTEMS, INC. VS. SECURITY TECH LLC, ET AL.
          Nature of Proceeding: Motion To Compel Interrogatories
          Nature of Proceeding: Motion To Compel Interrogatories
          Filed By:   McNeill, Marta C.

          Plaintiff's motion to compel further responses to interrogatories and request for
          admissions is unopposed and is granted.

          Defendants shall serve further responses, verified and without objection, to form
          interrogatory (set one) no. 150.1, and requests for admissions (set one) nos. 1.1, 1.2,
          1.4, 1.5, 2.1, 2.2, 2.3 and 2.4 no later than May 7, 2007.

          The minute order is effective immediately. No formal order pursuant to CRC Rule
          3.1312 or further notice is required.


Item 19   06AM07278         CAPITAL ONE BANK VS. KAREN L. SPRAGUE
          Nature of Proceeding: Motion to Vacate and Set Aside Default Judgment
          Filed By:   Yalon Jr., Jerome M.

          Plaintiff's motion to vacate and set aside judgment is unopposed and is granted for
          good cause shown.

          The judgment entered on October 27, 2006 against defendant Karen L. Sprague is
          hereby vacated and set aside.

          The minute order is effective immediately. No formal order pursuant to CRC Rule
          3.1312 or further notice is required.


Item 20   06AS02786         SHEPARD JOHNSON ET AL VS. MONTE WATSON ET AL
          Nature of Proceeding: Motion To Quash Service Summons
          Filed By:   Nevis, Ralph R.

          Defendants Jack Waldrep, Sandi Stein, David Miner, Sarah Miner, Susan Fine, Ford
          Hermanson and Patricia Hermanson’s motion to quash service of summons and
          complaint for lack of personal jurisidiction is granted.

          Moving defendants have produced evidence establishing that they are residents of
          other states; they do not own property in this state; they do not maintain bank accounts
          or telephone listings in this state. None of the defendants except Susan Fine has ever
          conducted business in this state. Defendant Fine taught business seminars in
          California between 1990 and 2002, unrelated to the issues in this case. This evidence
          establishes that defendants do not have the kind of substantial, continuous or
          systematic contacts with California that is required to confer general jurisdiction. Vons
          Cos.,Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 445.

          Moving defendants have also produced evidence that their only connection with
          plaintiff is that they entered into contracts with plaintiffs in Panama to purchase land
          located in Panama. Defendants traveled to Panama to purchase the properties and
          entered into the contracts in Panama. When disputes over the transactions arose,
          defendants initiated litigation in Panama. The alleged false defamatory statements
          defendants initiated litigation in Panama. The alleged false defamatory statements
          were directed to other property owners in Panama. None of these actions satisfy the
          “purposeful availment” requirement to establish specific jurisdiction. Pavlovich v.
          Superior Court (2002) 29 Cal.4th 262, 268.

          Plaintiffs argue that defendants engaged in extortion against Johnson by initiating
          criminal proceedings in Panama and threatening to initiate civil litigation in Panama,
          and that the extortionate nature of defendants’ communications to Johnson in
          California provides a basis for specific personal jurisdiction. The Court is not
          persuaded. The dispute between Johnson and moving defendants turns on Johnson’s
          refusal to convey title to the properties purchased by defendants. The criminal
          proceedings and threats of civil litigation were not aimed by defendants at depriving
          Johnson of his own property or money.

          Plaintiffs argue further that defendants published defamatory statements about
          Johnson aimed within this state. Plaintiffs reason that, since about 35% of the owners
          of properties purchased from plaintiffs in Panama were California residents, statements
          made on web sites accessible to these California residents constitute activity targeted
          to this state. The Court again is not persuaded. The posting of offending material on a
          passive web site is not an act purposefully directed toward a particular forum. Shisler
          v. Sanfer Sports Cars, Inc. (2006) 146 Cal.App.4th 1254, 1261.

          Nor is the fact that Johnson is a resident of California, and suffered emotional distress
          and other injury in California from the alleged defamatory statements sufficient. The
          effects test adopted in Calder v. Jones (1984) 465 U.S. 783 requires not only
          knowledge that intentional conduct would cause harm in the forum, but also intentional
          conduct expressly aimed at or targeting the forum state. Pavlovich v. Superior Court
          (2002) 29 Cal.4th 262, 271-273. The alleged defamatory website postings were not
          aimed at California; they were targeted to owners of property purchased in Panama
          from plaintiffs. That some percentage of these owners resided in California is pure
          happenstance.

          In sum, plaintiffs have not shown contacts meeting either the minimum contacts test for
          general jurisdiction or the purposeful availment test for specific jurisdiction, nor have
          plaintiffs shown that defendants engaged in intentional conduct targeting California.

          The minute order is effective immediately. No formal order pursuant to CRC Rule
          3.1312 or further notice is required.



Item 21   06CS01672        PEOPLE OF ST OF CA VS. $479.00 IN U.S. CURRENCY (DIXON)
          Nature of Proceeding: Motion To Compel Production of Documents
          Filed By:   Leonard, Stephanie

          Petitioner's motion to compel responses to request for production of documents is
          unopposed and is granted.

          Real party in interest Julian Dixon shall serve verified responses, without objection, no
          later than May 7, 2007.

          Sanctions are denied as the motion is unopposed.
          Sanctions are denied as the motion is unopposed.

          The minute order is effective immediately. No formal order pursuant to CRC Rule
          3.1312 or further notice is required.


Item 22   07CS00282         IN RE: CYLIE JEAN BORN
          Nature of Proceeding: Petition For Change Of Name
          Filed By:   Born, Kimberly

          The petition for name change is unopposed and is granted on condition that proof of
          publication is filed in Department 54 prior to hearing.


Item 23   07CS00318         IN RE: KIMBERLY JOHNSON
          Nature of Proceeding: Petition For Change Of Name
          Filed By:   Johnson, Kimberly

          The petition for name change is unopposed and is granted.


Item 24   07CS00320         IN RE: JIA LIAN JUSTIN CHAN
          Nature of Proceeding: Petition For Change Of Name
          Filed By:   Chan, Moon Shel

          The petition for name change is unopposed and is granted.


Item 25   06ED28954         STATE OF CALIFORNIA, ET AL VS. ROXAN R. HOOKS
          Nature of Proceeding: Claim of Exemption
          Filed By:   Abaya, P.

          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.

          However, the judgment creditor is willing to accept a lesser amount than it is entitled to
          garnish. The Sheriff is therefore directed to garnish $75 per pay period, not to exceed
          $150 per month, from the judgment debtor’s earnings and return to the judgment
          debtor forthwith all funds withheld in excess of that amount.

								
To top