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civil tentative rulings


The court does not issue tentative rulings on Writs of Attachment, Writs of Possession, Claims of Exemption, Claims of Right to Possession, Motions to Tax Costs After Trial, Motions for New Trial, or Motions to Continue Trial.


Under California Rules of Court, rule 3.1308 and Local Rule 701, any party opposed to the tentative ruling must notify the court, and other parties, by 4:00 p.m. on the court day before the hearing of their intention to appear for oral argument. The court's notice must be made by facsimile to 559-733-6774.


Timestamp: 12/03/2016 at 3:47pm



Re:                     Mason, et al. v. County of Kings, et al.

Case No:            Kings County Superior Court Case No.: 15 C 0218

Date:                  December 5, 2016

Time:                  8:30 A.M. 

Dept.:                 1 - The Honorable Melinda Reed

Motion:               Demurrer by Defendant County of Kings to First Amended Complaint for Damages

Tentative Ruling:  To sustain the Demurrer by Defendant County of Kings to First Amended Complaint for Damages, without leave to amend. 

Defendant County of Kings’ (County) request for judicial notice is granted.

Here, plaintiffs Jeff Mason and Jeff O’Neal’s (collectively plaintiffs) first amended complaint for retaliation under the Fair Employment and Housing Act (FEHA) asserts their right to sue and exhaustion of administrative remedies pursuant to a right-to-sue letter Mason received on August 29, 2014, and O’Neil received on September 2, 2014, from the California Department of Fair Employment and Housing (Department).

As such, under Government Code section 12960(d), Mason’s right to recovery is limited to actions occurring between August 29, 2013 and August 29, 2014; and O’Neal’s right is limited to actions occurring between September 2, 2013 and September 2, 2014.

On demurrer, the County asserts plaintiffs’ pleading is time-barred for failure to state facts sufficient to support their retaliation claim within the applicable limitation periods, and fails to allege a prima facie case of retaliation.

As to the County’s misconduct against Mason during his limitation period, the first amended complaint alleges Mason was forced to attend workplace training in November 2013 and his supervisor told him that O’Neal’s stress leave was ridiculous and should not be tolerated in March 2014.

As to O’Neal’s limitation period, plaintiffs allege O’Neal was on stress leave during the majority of his limitation period (June 2013-June 2014). There are no allegations of alleged misconduct other than the comment from plaintiffs’ supervisor to Mason about O’Neal’s stress leave.

Under Government Code section 12940, subdivision (h), an employer may not retaliate or discriminate against an employee who engages in protected activity under FEHA. That subdivision provides: "It is an unlawful employment practice . . . [f]or any employer . . . to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under [FEHA] or because the person has filed a complaint, testified, or assisted in any proceeding under [FEHA]." "Protected activity" under FEHA involves the employee engaging in some type of conduct that opposes, or complains of, the employer's actions based on the employee's reasonable belief that some act or practice of the employer is unlawful. (See Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal. 4th 1028, 1043 (Yanowitz).)

In order to establish a FEHA retaliation claim, plaintiffs must show they were engaged in a protected activity; retaliatory animus by the County; an adverse employment action; and a causal link between the protected activity and the adverse employment action. (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal. App. 4th 686, 713.) Moreover, under Yanowitz, supra, 36 Cal. 4th 1028, 1051, the adverse employment action must materially affect the terms and conditions of employment. 

Here, plaintiffs’ pleading fails to allege the County caused them to suffer sufficient adverse employment action within the limitation periods. The only action alleged concerns the County requiring Mason to attend training. There is nothing included in the allegation suggesting the requirement materially affected the terms and conditions of Mason’s employment as required by Yanowitz.  There is no adverse employment action by the County alleged to have resulted from the supervisors’ stress leave comment. 

Plaintiffs’ assertion that the continuing violation doctrine under Richards v. CH2M Hill, Inc. (2001) 26 Cal. 4th 798 supports their reliance on alleged retaliatory actions occurring beyond the one-year limitations period is unavailing. Under the doctrine, plaintiffs must sufficiently show that at least one retaliatory act occurred within the limitations period and that misconduct outside the period constitutes more than isolated or sporadic acts. (Morgan v. Regents of University of Cal. (2000) 88 Cal. App. 4th 52, 64.) Here, as discussed above, there is no adequate adverse employment action alleged to have occurred within the limitation periods.

Likewise, plaintiffs’ contention that the equitable tolling doctrine under McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal. 4th 88 permits allegations occurring outside of the limitation periods does not withstand scrutiny. The doctrine permits tolling when an employee voluntarily pursues an internal administrative grievance remedy prior to filing a complaint under FEHA. Here, there is no indication plaintiffs pursued an administrative remedy or alternative remedy against the County prior to filing their complaint. Moreover, as to Mason, his prior right to sue letter dated August 27, 2013 appears to preclude the doctrine from applying to acts occurring between the right to sue letter and the filing of this lawsuit. (Bjorndal v. Superior Court (2012)  211 Cal. App. 4th 1100, 1109.)

In short, plaintiffs’ first amended complaint is time-barred under FEHA for failure to allege a sufficiently adverse employment action occurring within one year of the right to sue letters plaintiffs received from the Department. Accordingly, the County’s demurrer is sustained based upon plaintiffs’ failure to state a proper cause of action for retaliation as a matter of law.

Plaintiffs’ request for leave to amend is denied. This is the second attempt by plaintiffs to assert claims that are not time-barred. (See court’s ruling on demurrer dated June 27, 2016.) There is nothing in the first amended complaint or in plaintiffs’ opposition to demurrer suggesting plaintiffs are able to assert additional or different facts to support their retaliation claims. As such, leave to amend is appropriately denied.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

 

Re:                   Estrada v. Murphey, et al.

Case No.:         VCU260354

Date:                December 5, 2016

Time:                8:30 A.M. 

Dept.                 1– The Honorable Melinda Reed

Motions:            (1) Defendants Heartland Express, Inc. of Iowa and Paul Edwin Murphey’s Motion to Compel Patriot Environmental Services, Inc.’s Compliance with Deposition Subpoena Pursuant to CCP § 1987.1; (2) Defendant Heartland Express, Inc. of Iowa and Paul Edwin Murphey’s Motion to Compel ILWU Local 56’s Compliance with Deposition Subpoena Pursuant to CCP § 1987.1

Tentative Rulings:  There are no tentative rulings in this matter. The parties shall meaningfully meet and confer to resolve their discovery disputes. If unable to resolve, counsel are directed to personally appear at the hearing. No CourtCall is permitted by any person if the parties are unable to resolve on the merits.

 

Re:                   Martin-Soares, et al. v. Tulare Local Healthcare District, et al.

Case No.:        VCU266902

Date:                December 5, 2016

Time:                8:30 A.M. 

Dept.                1– The Honorable Melinda Reed

Motion:             Demurrer of Defendant Healthcare Conglomerate Associates, LLC to Plaintiffs’ Complaint

Tentative Ruling:  To sustain the Demurrer of Defendant Healthcare Conglomerate Associates, LLC to Plaintiffs’ Complaint, without leave to amend.
Plaintiffs Deanne Martin-Soares and Emily Yeniques’ (collectively plaintiffs) verified complaint requests declaratory and injunctive relief for violations of the Public Records Act (the Act) against defendants Tulare Local Health Care District (District) and Healthcare Conglomerate Associates, LLC (HCCA).
On demurrer, HCCA contends plaintiffs’ complaint fails to state proper claims against it because the facts alleged are insufficient to show HCCA is a public agency required to comply with the Act.

Proof of service in the court’s file indicates notice of the demurrer was adequate. No response to the demurrer has been filed.
As to HCCA’s contention that HCCA is not a public agency, plaintiffs’ complaint alleges HCCA “provides administrative and management services for the hospital and other facilities owned by the District” but does not allege HCCA is a public agency subject to the Act. 

Government Code section 6252 defines the public agencies required to comply with the Act. The definition does not include private businesses that provide management or administrative services to public agencies. Moreover, governing California law holds that providing a public function is insufficient to impart public agency status to a non-governmental agency. (See California State Univ. v. Superior Court (2001) 90 Cal. App. 4th 810, 829.)
In short, plaintiffs’ complaint fails to state proper claims against HCCA under the Act. Plaintiffs have not filed any opposition to HCCA’s demurrer or shown how their complaint can properly be amended. As such, leave to amend is appropriately denied.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.


Re:                   McCarter, et al. v. General Motors LLC

Case No.:        VCU264071

Date:               December 5, 2016

Time:               8:30 A.M. 

Dept.                1– The Honorable Melinda Reed

Motion:            Defendant General Motors LLC’s Motion for Protective Order

Tentative Ruling: There is no tentative ruling in this matter. The parties shall meaningfully meet and confer to resolve this discovery dispute. If unable to resolve, counsel are directed to personally appear at the hearing. No CourtCall is permitted if the parties are unable to resolve.


This concludes the civil tentative rulings



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