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.
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