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The complaint alleges causes of action for negligence strict

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					                                                  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

                                  Tuesday, September 19, 2006, 9:00 AM

Item 1      02AS02612         LEROY GARCIA VS. BOBCAT COMPANY, ET AL
            Nature of Proceeding: Summary Judgment
            Filed By:   Bryan, Joshua M.

            The complaint alleges causes of action for negligence, strict liability and breach of
            express and implied warranty arising from injuries to the plaintiff during the operation of
            a Bobcat skid-steer loader and backhoe. Plaintiff was injured when the backhoe
            rotated backward, away from the skid-steer loader. Plaintiff alleges that the skid-steer
            loader and backhoe were defective in that it is not possible to tell is the lock levers are
            fully engaged, and that when a safety chain is not used the backhoe attachment can
            separate from the Bobcat and cause injury or death.

            Defendant Hyster Sales, Co., Inc. (hereafter Hyster) moves for summary
            judgment/summary adjudication. The Notice of Motion does not state what issues are
            to be adjudicated nor does the separate statement conform to the requirements of
            C.R.C. rule 342(d) and (h). The motion for summary adjudication is therefore denied.

            Hyster has produced evidence that an Operation & Maintenance Manual for the subject
            backhoe was provided at the time of sale describing the proper method of attaching the
            backhoe to the skid-steer loader. Co-defendant Clark also subsequently provided a
            safety chain with warning decals which were mounted on the subject backhoe. The
            decals contained instructions on locking the levers so that the wedges extend through
            mounting frame holes, and on tightening and fastening the safety chain around the Bob
            -Tach and mounting frame. Co-defendant Clark's Product Safety Manager testified
            that if the Bob-Tach levers are properly locked, the backhoe cannot separate from the
            skid-steer loader. If the backhoe is not properly attached to the skid-steer loader, the
            safety chain will prevent the backhoe from separating. Plaintiff’s co-workers attached
            the backhoe to the skid-steer loader and they cannot recall if the levers were locked
            into place such that the wedges extended through the mounting frame holes. They
            also cannot recall attaching a safety chain.

            This evidence is sufficient to meet defendant’s initial burden, shifting the burden to
            plaintiff to produce evidence raising a triable issue of material fact.

            Plaintiff testified that he watched his co-workers attach the backhoe to the skid-steer
            loader and heard the spring mechanism engage. Garcia deposition, pp. 140-142. Mr.
            Garcia also testified that he never saw a safety chain during the entire process of
         Garcia also testified that he never saw a safety chain during the entire process of
         attachment of the backhoe. There is a dispute as to whether the backhoe came with
         instructional and warning decals. Garcia deposition, pp. 47, 143, 147-148; deposition
         of Treadway, p. 30; deposition of Leach, p. 38. William Pate testified that there was no
         evidence that a safety chain had ever been attached to the skid-steer loader.
         Declaration of Pate. Furthermore, Dr. Velinsky opined that the attachment was
         defective in its design at the time of its manufacture. Declaration of Velinsky. This
         evidence is sufficient to raise a triable issue of material fact as to whether the backhoe
         could separate from the skid-steer loader even if it were properly attached, whether the
         attachment was defectively designed and whether any safety chain was ever attached
         to the equipment.

         Plaintiff's objections to Exhibits C, D and N, and declaration of Ihringer, p.2:13-23, are
         overruled. Plaintiff's objection to the Ihringer declaration submitted with the reply
         papers is overruled.

         Hyster's Request for Judicial Notice is granted, except that the court does not grant
         judicial notice of all papers in support of Clark's motion for Summary Judgment.

         The motion for summary judgment is denied.




Item 2   02AS07638         MILES CORTEZ VS. SUSAN RAY, ET AL
         Nature of Proceeding: Summary Judgment
         Filed By:   Brown, David I.

         Plaintiff was injured when he was pushed through a window by defendant Cauldiron.
         Defendant Merrill moves for summary judgment/summary adjudication of causes of
         action on the ground he took no part in causing plaintiff to fall through the window.

         In his moving papers, Merrill presents different versions of what occurred that night.
         According to Washburn, Merrill accidentally bumped into plaintiff, who responded by
         cursing at Merrill. Merrill gave Cortez an open-handed push to the face. Washburn
         intervened, Merrill apologized but Cortez hit Merrill. While Washburn attempted to
         wrap his arms around Merrill, serveral of Cortez's friends began to lunge toward Merrill,
         along with Cortez. Cauldiron grabbed Cortez in a bear hug, in an effort to wrestle him
         away from Merrill. While Cortez was struggling to free himself from Cauldiron's grasp,
         they fell into a large window. There is evidence that Cauldiron and Merrill were friends.
         See Merrill's exhibit E, where Cauldiron states his friend, Mike and a guy named Miles
         got into a fight. According to Merrill, he was in the kitchen area when he was
         approached by Cortez, they traded insults, they wrestled for about one minute and then
         were separated, Merrill returned to the kitchen, he saw someone come at Cortez, saw
         were separated, Merrill returned to the kitchen, he saw someone come at Cortez, saw
         Cortez suddenly running at a group of people standing near a window and heard it
         break. Cortez is of the impression that Cauldiron was coming to the assistance of his
         friend Merrill. Deposition of Cortez, pp. 52 and 59. Plaintiff stated he and Merrill were
         wrestling and all of a sudden, from nowhere, Cauldiron comes from plaintiff's back,
         pushes him and he goes through the window. It was a matter of seconds. He and
         Merrill were still were still engaged in the fight. There are triable issues of material fact
         regarding the events of that night and whether Merrill's actions were a substantial
         factor in the resulting harm to plaintiff.

         This minute order is effective immediately. No formal order is needed, C.R.C. rule 391;
         nor is further notice of this ruling required, C.C.P. section 1019.5.


Item 3   04AS03298         JAIME ARIAS-MALDONADO VS. ERIC J. MESSERSMITH, ET AL
         Nature of Proceeding: Motion To Compel Discovery
         Filed By:   Arias-Maldonado, Jamie

         Plaintiff's motions, for discovery and for the court appointed or volunteer counsel, are
         denied. The State Bar defendants' demurrer was sustained without leave to amend.
         Furthermore, plaintiff has not shown that he cannot file motions and argue them before
         the court or otherwise does not have access to the courts so that counsel has to be
         appointed for him.

         This minute order is effective immediately. No formal order is needed, C.R.C. rule 391.
         The court clerk is directed to serve plaintiff with a copy of the court's ruling.


Item 4   04AS03712         CHARLES CAVALIER, ET AL VS. MONICE KWOK, M.D., ET AL
         Nature of Proceeding: Motion for Court Order to Overrule Objections
         Filed By:   Park, Jennifer L.

         This matter is dropped from calendar.


Item 5   04AS03712         CHARLES CAVALIER, ET AL VS. MONICE KWOK, M.D., ET AL
         Nature of Proceeding: Motion To Compel - Form Interrogatories
         Filed By:   Park, Jennifer L.

         This matter is dropped from calendar.


Item 6   05AS01152         SYLVIA DELLAR SURVIVOR'S TRUST VS. CITY OF SACRAMENTO
         Nature of Proceeding: Summary Judgment
         Filed By:   Rogan, Kathleen T.

         This matter is continued to 11/16/2006 at 09:00AM in this department.


Item 7   05AS01152         SYLVIA DELLAR SURVIVOR'S TRUST VS. CITY OF SACRAMENTO
         Nature of Proceeding: Summary Judgment
          Nature of Proceeding: Summary Judgment
          Filed By:   Scharff, Jeffory J.

          This matter is continued to 11/16/2006 at 09:00AM in this department.


Item 8    05AS01846          EMILY HOSIER, ETAL VS. SUTTER HLTH, ETAL
          Nature of Proceeding: Motion To Withdraw Atty of Record
          Filed By:   Fladseth, Douglas C.

          The motion to withdraw as attorney for the minor Jesus Hosier-Villela is dropped. The
          proof of service, Form MC-052, does not reflect that the motion was served on the
          minor by service on his guardian ad litem. On August 23, 2005, Emily Hosier, the
          minor plaintiff's mother, filed a Substition of Attorney form in which she attempted to
          substitute herself as the minor's attorney in place of attorney Douglas C. Fladseth. The
          Form was not processed by the Court because the mother, Ms. Hosier, was not the
          minor's guardian ad litem and could not, on his behalf, make such a substitution. Nor
          is she an attorney. The court file reflects that, on July 12, 2005, Mr. Fladseth filed an
          application for appointment of Kim Hendricks as guardian ad litem for the minor, which
          application was approved by the court on that date. The court file also shows that Ms.
          Hosier dismissed the action as to her causes of action but, again, she cannot dismiss
          the minor plaintiff's causes of action as she is not his guardian ad litem.


Item 9    05AS02836          RICHARD C. MCGEE, JR. VS. ARNOLD SCHWARZENEGGER, ETAL
          Nature of Proceeding: Demurrer (Governor Schwarzenegger and Attoney General Lockyer)
          Filed By:   Reager, Kevin W.

          This matter is continued on the Court's own motion to 10/4/2006 at 09:00AM in this
          department.


Item 10   05AS02836          RICHARD C. MCGEE, JR. VS. ARNOLD SCHWARZENEGGER, ETAL
          Nature of Proceeding: Demurrer (California Legislature)
          Filed By:   Kerins, Michael J.

          This matter is continued on the Court's own motion to 10/4/2006 at 09:00AM in this
          department.


Item 11   05AS02836          RICHARD C. MCGEE, JR. VS. ARNOLD SCHWARZENEGGER, ETAL
          Nature of Proceeding: Demurrer (Fireside Bank)
          Filed By:   Rocha, Karel

          This matter is continued on the Court's own motion to 10/4/2006 at 09:00AM in this
          department.


Item 12   05AS02836          RICHARD C. MCGEE, JR. VS. ARNOLD SCHWARZENEGGER, ETAL
          Nature of Proceeding: Demurrer (County of Sacramento)
          Nature of Proceeding: Demurrer (County of Sacramento)
          Filed By:   Hewitt, Shanan L.

          This matter is continued on the Court's own motion to 10/4/2006 at 09:00AM in this
          department.


Item 13   05AS02836         RICHARD C. MCGEE, JR. VS. ARNOLD SCHWARZENEGGER, ETAL
          Nature of Proceeding: Demurrer (City of Sacramento, Heather Fargo, & Sacramento PD)
          Filed By:   Womack, David S.

          This matter is continued on the Court's own motion to 10/4/2006 at 09:00AM in this
          department.


Item 14   05AS02836         RICHARD C. MCGEE, JR. VS. ARNOLD SCHWARZENEGGER, ETAL
          Nature of Proceeding: Motion To Strike
          Filed By:   Womack, David S.

          This matter is continued on the Court's own motion to 10/4/2006 at 09:00AM in this
          department.


Item 15   05AS04262         MARK A GRANT VS. MARIA NAJERA, ET AL
          Nature of Proceeding: Motion to Strike
          Filed By:   Corzine, Jeff L.

          Defendant Margarita Torres-Alviso's motion to strike paragraph 14a(2) on page 3,
          paragraphs 65-77 on pages 14-16 of attachment A2 and paragraph 3 under Plaintiff's
          prayer for the first cause of action on page 21 of Attachment A2, all of which seek
          punitive damages, is granted without leave to amend. The allegations are not sufficient
          to enable plaintiff to seek punitive damages. Plaintiff opposes the motion, arguing the
          motion to strike does not comply with C.R.C. rule 329. The court finds the motion
          complies with C.R.C. rule 329. Plaintiff also argues his allegations are sufficient, but
          the court finds they are not. Finally, plaintiff asks the court to sanction defendant's
          attorney for repeatedly arguing issues already determined by the court. The court
          declines to do so; plaintiff's request is denied.

          This minute order is effective immediately. No formal order is needed, C.R.C. rule 391;
          nor is further notice of this ruling required, C.C.P. section 1019.5.



Item 16   05AS04436         SUSANNE VAN HECKE VS. APPLE COMPUTER, INC. ET AL
          Nature of Proceeding: Motion To Compel
          Filed By:   Cardinal, Marc J.

          Defendants request leave to depose plaintiff, who currently resides in Ohio, in
          Sacramento. Defendants offer to pay plaintiff's travel costs to Sacramento. The first
          Sacramento. Defendants offer to pay plaintiff's travel costs to Sacramento. The first
          session of plaintiff's deposition went forward in Ohio. Plaintiff has since returned to
          attend the defendants' depositions (5 of 6), in California. After analyzing the factors
          enumerated in C.C.P. section 2025.260(b), the court denies the motion, defendants'
          having failed to meet their burden.

          All requests for sanctions are denied.

          This minute order is effective immediately. No formal order is needed, C.R.C. rule 391;
          nor is further notice of this ruling required, C.C.P. section 1019.5.



Item 17   05AS05568         SAUNDRA JACKSON VS. PATTY READ, ET AL
          Nature of Proceeding: Demurrer & Motion to Strike
          Filed By:   Vierra, Wendy D.

          Defendant Rod Read & Sons generally demur to the fifth cause of action for statutory
          violations on the ground it is barred by the one year statute of limitations and fails to
          state a cause of action as it fails to allege certain conditions precedent required to state
          the cause of action. Plaintiff's opposition does not oppose the demurrer, which the
          court takes as a concession of its merit.

          The general demurrer to the fifth cause of action is sustained without leave to amend.

          Defendant also moves to strike allegations in the complaint regarding personal injuries
          alleged in the first, second and fourth causes of action relating to plaintiff's residency in
          Unit #3. That portion of the motion to strike is not opposed by plaintiff and is granted
          without leave to amend.

          Defendant moves to strike the prayer for attorney's fees sought in the negligence,
          negligent breach of implied warranty of habitability, negligent nuisance and negligent
          breach of implied covenant of quiet use and enjoyment causes of action, on the ground
          there is no legal basis for these damages. Plaintiff opposes this part of the motion.
          The motion is denied. Plaintiff alleges the contract at issue contains an attorney fee
          provision that provides that the prevailing party in any litigation is entitled to reasonable
          attorney's fees. That language could be broad enough to allow recovery of attorney's
          fees regardless of the theory alleged. Xuereb v Marcus & Millichap, Inc. (1992) 3
          C.A.4th 1338.

          Defendant to file and serve its answer to the remaining causes of action (3rd cause of
          action - nuisance and 6th cause of action - breach of contract) no later than Friday,
          September 29, 2006.

          This minute order is effective immediately. No formal order is needed, C.R.C. rule 391;
          nor is further notice of this ruling required, C.C.P. section 1019.5.




Item 18   05AS05644         GARY TROBEE VS. CA PUBLIC EMPLY RETIREMENT SYSTEM ET AL
          Nature of Proceeding: Demurrer
Nature of Proceeding: Demurrer
Filed By:   Mitchell, Crystal L.

Plaintiff alleges he was retaliated against by his manager, who created a hostile work
environment, and suffered damages. Defendants generally demur to plaintiff's first and
second causes of action on the ground plaintiff fails to allege exhaustion of judicial
remedies; generally demur to the second cause of action on the ground plaintiff failed
to allege exhaustion of administrative remedies; and generally and specially demur to
the third cause of action on the ground they cannot ascertain if plaintiff is pursuing an
action at law for damages or a writ of mandate.

The general demurrer to the first cause of action on the ground of failure to exhaust
judicial remedies is overruled. Plaintiff argues that the SPB has adopted regulation
56.5 that reflects the law as it has always been, because the Board cannot make law it
can only adopt regulations that interpret statutes passed by the legislature. Section
56.5(b) states that, in those cases where the Executive Officer concludes that the
allegations of retaliation were not proven by a preponderance of the evidence, the
Executive Officer shall issue a Notice of Findings dismissing the complaint. The Notice
of Findings shall notify the complainant that his or her administrative remedies have
been exhausted and that the complainant may file a civil complaint with the superior
court pursuant to Government Code section 8547.8(c). This regulation appears to
implement Government Code section 8547.8. That section allows a state employee
(injured party) to bring a lawsuit for damages, but only if the injured party first files a
complaint with the Board and the board has issued, or failed to issue, findings. No
other conditions are attached to the right to bring an action for damages. The doctrine
of exhaustion of judicial remedies requires that a person who files a claim or action
before a judicial or quasi-judicial body, at which findings have been made, have those
findings set aside before bringing an action at law for damages; otherwise the findings
have a res judicata effect on the action at law. Government Code section 8547.8
however expressly allows an action at law to be brought once findings are made, or not
made. No other conditions are attached to the right to bring the action. The
Legislature is deemed to be aware of case law and other statutes when it promulgates
a statute. In this instance, although being aware of the cases discussing the doctrine
of judicial exhaustion, the Legislature has allowed an injured party to bring an action at
law for damages, pursuant to section 8547.8, conditioned only on the filing of a
complaint before the Board and the Board issuing, or failing to issue, findings.

No such statutory or regulatory scheme is argued in connection with Labor Code
section 1102.5. The general demurrer to the second cause of action, violation of Labor
Code section 1102.5, is sustained without leave to amend.

Plaintiff argues that if the court dismisses the first cause of action, then the third cause
of action contains a request for a writ of mandate. Since the first cause of action is not
dismissed, the demurrers to the third cause of action for mandate are sustained without
leave to amend.

Defendant to file an answer no later than Friday, September 29, 2006.

This minute order is effective immediately. No formal order is needed, C.R.C. rule 391;
nor is further notice of this ruling required, C.C.P. section 1019.5.
Item 19   06AS00354         TAYLOR THALMAN VS. BONNIE HUTSON, ET AL
          Nature of Proceeding: Demurrer
          Filed By:   Stepp, Leigh A.

          This matter is continued to 9/28/2006 at 09:00AM in this department.


Item 20   06AS00354         TAYLOR THALMAN VS. BONNIE HUTSON, ET AL
          Nature of Proceeding: Motion To Strike
          Filed By:   Stepp, Leigh A.

          This matter is continued to 9/28/2006 at 09:00AM in this department.


Item 21   06AS01844         ASHOK SHARMA VS. RENEE PILLADO
          Nature of Proceeding: Default Hearing
          Filed By:   Sharma, Ashok

          Plaintiff's request for a default judgment is denied. Defendant's default was
          inadvertently entered by the court clerk on August 28, 2006 although an answer was
          on file as of June 13, 2006. The default was set aside by the court on September 11,
          2006.


Item 22   06AS02416         DUNMORE HOMES, ET AL VS. BENJAMIN KING CONSTRUCTION, ET AL
          Nature of Proceeding: Motion for Order Determining Settlement to be in Good Faith
          Filed By:   Dunn, Reginald

          Defendant Holmes Hally Industries dba The Garage Door Center's motion that its
          settlement with plaintiff Dunmore Homes, Dunmore Development Co. and Sheldon
          North Investors, L.P. is in good faith is unopposed and is granted. The court finds the
          factors set forth in Tech-Bilt, Inc. v Woodward-Clyde Associates (1985) 38 C.3d 488
          are met.

          This minute order is effective immediately. No formal order is needed, C.R.C. rule 391;
          nor is further notice of this ruling required, C.C.P. section 1019.5.



Item 23   06AS03612         GRANITE BAY HOLDINGS, LLC ET AL VS. JOHN C. MILLER ET AL
          Nature of Proceeding: OSC RE: Preliminary Injunction
          Filed By:   Calnero, Carl

          This matter is dropped from calendar.


Item 24   06CS01086         IN RE: ANGELA LORETTA THOMPSON
          Nature of Proceeding: Petition For Change Of Name
          Filed By:   Thompson, Angela Loretta

          The Petition for Change of Name is granted on condition Petitioner files a proof of
          publication in department 54 by the time of the hearing.


Item 25   06CS01128        IN RE: MARY RENEE HAYES
          Nature of Proceeding: Petition For Change Of Name
          Filed By:   Hayes, Mary Renee

          The Petition for Change of Name is granted on condition Petitioner files a proof of
          publication in department 54 by the time of the hearing.



Item 26   06CM00246        CACV OF COLORADO LLC VS. JOHN M HARRIS
          Nature of Proceeding: Petition To Confirm Arb Award
          Filed By:   Harvego, Deborah

          The Petition to confirm the arbitration award of $6,074.43 is granted. Petitioner to
          submit a judgment to department 54, no later than 9:00 a.m., Tuesday, September 19,
          2006. The judgment shall be in the amount of $5,374.43 and shall include $300 for
          attorney's fees and $430 costs.

          This minute order is effective immediately. No formal order is needed, C.R.C. rule 391;
          nor is further notice of this ruling required, C.C.P. section 1019.5.

				
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