Feb 26, 2015

Wednesday, February 25, 2015, 3:00 p.m.
Courtroom 17 – Hon. Gary Nadler
3035 Cleveland Avenue, Suite 200, Santa Rosa

CourtCall is available for all Law & Motion appearances, EXCEPT parties in small claims cases and motions for claims of exemption which are mandatory appearances. Please contact CourtCall directly at (888) 882-6878.

The following tentative rulings will become the ruling of the Court unless a party desires to be heard. If you desire to appear and present oral argument as to any motion, YOU MUST notify Judge Nadler’s Judicial Assistant by telephone at (707) 521-6725, and all other opposing parties of your intent to appear by 4:00 p.m. today, Tuesday, February 24, 2015. Parties in small claims cases and motions for claims of exemption are exempt from this requirement.




1. MCV-209748, Ford Motor Credit Company, LLC v. Fernandez
Appearances are required regarding the distribution of funds held by the Marin County Sheriff.

2. MCV-232325, Collectronics, Inc. v. Cardinal Puffs, LLC
Plaintiff’s motion for appointment of Michael Brewer as a receiver is granted. Plaintiff shall post an undertaking in the amount of $15,000 in accordance with Code of Civil Procedure section 567.

3. SCV-253597, Creditors Adjustment Bureau, Inc. v. Fetters
DROPPED from calendar at the request of counsel for moving party.

4. SCV-254514, Wieder v. Lee
Plaintiffs move to compel answers to deposition questions posed to Defendant Lee and for sanctions.

Defendant, preliminarily, asserts that the motion to compel is untimely. The motion was filed on December 23, 2014, at which time the trial date was then January 30, 2015. The motion would have been required to be heard on January 14, 2015. Even if the motion were personally served, there would have been insufficient notice. Further, the actual hearing date was set on February 25, 2015, after the trial date.

Plaintiff sought ex parte to advance the hearing, which was denied “too late for the motion to be heard.”

The motion is denied on procedural grounds. Code of Civil Procedure section 2024.020.

5. SCV-254756, Doolan v. Chong

Defendants’ demurrer to the Third Amended Complaint:
Defendants’ request for judicial notice is granted in part and denied in part. The court denies request No. 8. The court grants the remaining requests, however, the court does not judicially notice the truth of any assertions contained in the documents, only of the documents themselves and the legal effect of the document.

Plaintiff’s request for judicial notice is granted.

The demurrer by Defendant District to the fourth cause of action for retaliation is overruled as the cause of action was dismissed without prejudice from the prior lawsuit, and as such, was not adjudicated. Unlike the other FEHA claims, Plaintiff dismissed this from the prior lawsuit, without prejudice. Even though the conduct partly hinges on Ms. Crawford’s conduct, this is still proper to consider as continuing violations and it is not clear that claims based on this conduct would be untimely.

The demurrers to the remaining causes of action are sustained without leave to amend for failure to allege facts constituting a cause of action.

With regard to the first cause of action, the qualified privilege contained in Civil Code section 47 is here applicable. This privilege only applies if the statement in question is made without malice.

Civil Code section 48 adds that in the case of qualified privilege under Civil Code section 47(c), “malice is not inferred from the communication.” As explained in Robomatic, Inc. v. Vetco Offshore (1990) 225 Cal.App.3d 270, 276, “[t]o defeat this conditional privilege, a plaintiff must specifically allege malice. A general allegation of malice will not suffice; plaintiff must allege detailed facts showing defendant's ill will towards him.” [Citations omitted]. Similarly, to defeat this qualified privilege, “[a]ctual facts of malice must be alleged or be apparent from the communications themselves.” Martin v. Kearney (1975) 51 Cal.App.3d 309, 312.

Plaintiff fails to allege facts which would support a finding of malice. What is alleged are defamatory statements, more akin to criticisms of Plaintiff as a faculty in a manner that would be consistent with superiors evaluating an employee. There are no allegations of intent apart from this, other than an unsupported conclusory statement of malice.

Plaintiff argues that the privilege does not apply because Defendants made the statements to those with no proper interest in the statements. However, this is a conclusory statement lacking any evidence, and allegations of the actual statements and to whom they were made indicates only that Defendants made the statements to each other involving employment review.

The court sustains this demurrer without leave to amend.

With regard to the second cause of action, Plaintiff now alleges that Defendants punished him for conduct, specifically student-medication error and using another faculty member’s lecture materials, when female faculty members have not been punished despite doing the exact same things. Plaintiff further alleges that Defendants deviated from the normal procedures by delaying release of Plaintiff’s schedule. Third Amended Complaint (“TAC”), ¶¶ 215-219. As before, Plaintiff specifically claims that at one point a supervisor, Susan Crawford, who is not even a party to this lawsuit and who otherwise took no part in the alleged discriminatory or retaliatory conduct, told Plaintiff that he should try to “speak more like a woman” when interacting with others but now he adds that she opined that men should not even be in the profession because men are aggressive, lack compassion, and the like. TAC, ¶¶ 218-219.

The allegations of this amended complaint include conduct which solely addresses the conduct of Crawford. As addressed in the motion to strike, this is conduct that apparently took place before, and was thus part of the claims adjudicated in the prior lawsuit. Plaintiff alleges that Crawford left SRJC in October, 2011 (TAC, ¶ 67), before Plaintiff filed the prior lawsuit in September, 2012. In the prior lawsuit, Plaintiff dismissed the retaliation claims without prejudice. However, the other FEHA claims were adjudicated with Plaintiff partly prevailing. Plaintiff has not added allegations of new conduct to support this cause of action. Plaintiff does not direct this cause of action against the individual Defendants. The demurrer is sustained without leave to amend.

As for the third cause of action, Plaintiff does provide some possible facially harassing conduct based on sex or gender. TAC, ¶¶ 215-219, 239. As before, Plaintiff alleges mostly unsupported, wholly conclusory statements and not one of the long list of detailed facts alleged actually shows an illegal, harassing animus based on the fact that Plaintiff is a man. Now, however, the amended complaint includes new allegations regarding animus towards Plaintiff and other men as “aggressive” and claims that Crawford called Plaintiff “Mr. Gonads” and made other sexual remarks. Individual Defendants may be liable for harassment, but the amended complaint alleges nothing showing that any individual Defendant engaged in the harassment; rather, the allegations are tied to Ms. Crawford, who is not a party.

The fifth cause of action, Defendant upon prior causes of action, is sustained without leave to amend.

The sixth cause of action is sustained without leave to amend. This cause of action would be viable against the individual Defendants for aiding and abetting harassment if Plaintiff demonstrates a valid cause of action for harassment. As Plaintiff does not so demonstrate, since all the alleged harassment took place prior to the prior lawsuit and thus was part of the claims adjudicated in that action, the demurrer is sustained without leave to amend.

With regard to the seventh and eighth causes of action, despite allegations intended to support claims against the individual Defendants as interference with a prospective economic relationship, it does not change the fact that Plaintiff is suing individual employees and supervisors for personnel decisions. As with discrimination versus harassment claims under FEHA, it is well established that individual employees are not liable for simple personnel decisions that they make unless a statute states otherwise. Sheppard v. Freeman (1998) 67 Cal.App.4th 339. The demurrer to these causes of action is sustained without leave to amend.

Moreover, they point out that they are employees of a party to the prospective relationship.

Motion to Strike:
The motion to strike is denied. Although the conduct of Crawford on the face of the pleadings took place prior to the prior lawsuit, and thus was part of the conduct at issue in the causes of action which were adjudicated in that case, it is also relevant to the cause of action for retaliation, which was not adjudicated.

6. SCV-255547, Walker v. Ross Stores, Inc.
DROPPED from calendar at the request of counsel for moving party.

7. SCV-255586, Ferguson v. Levine
Defendant Cal City Medical Supplies, dba Smart Remedies’ demurrer and motion to strike have been CONTINUED to Wed., April 8, 2015, at 3:00 p.m. per stipulation and order filed Feb. 18, 2015.

Defendant Cal City Medical Supplies, dba Smart Remedies’ motion for appointment of counsel pro hac vice is granted.

8. SCV-255892, De La Riva v. Kaiser
Defendants’ demurrer for uncertainty is overruled. The general demurrer to the cause of action for negligence is overruled. The demurrers to any other cause of action, including the apparent causes of action for abuse or neglect of a dependent adult and for intentional infliction of emotional distress are sustained with leave to amend.

Defendants’ motion to strike is granted, with leave to amend. Plaintiff has leave to amend within 20 days of the service of the notice of entry of this order. Defendant is to serve the notice of entry of this order within 5 days of this order.


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