Nov 30, 2015


TUESDAY, NOVEMBER 24, 2015 - 8:30 a.m.

COURTROOM 19 – Judge Arthur Wick

3055 Cleveland Avenue, Santa Rosa, CA  95403


Court Call is now available for all Law and Motion appearances, EXCEPT parties in small claims cases and motions for claims of exemption which are mandatory appearances. ** To set up Court Call- Please call them 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, it will be necessary for you to contact Judge Wick’s Judicial Assistant by telephone at (707) 521-6730 by 4:00 p.m., MONDAY, NOVEMBER 23, 2015.  Any party requesting an appearance must notify all other parties of their intent to appear.



1.  SCV-253761 Mones v. Lim:

                The motion in this matter has been dropped by the moving party.


2.  SCV-255965 Kin v. Sonoma:

            Motion Denied.  Defendant fails to meet its burden of demonstrating a legitimate, non-retaliatory motive that is not a pretext because Defendant itself presents facts and cites evidence demonstrating bases for finding the proffered legitimate motive to be a pretext.  Even if the court were to find that Defendant has met its burden, Plaintiff adduces substantial evidence sufficient in the aggregate to support a finding of pretext.

 It is illegal to retaliate against an employee who opposes violations of FEHA.  Govt. Code section 12940(h).  A prima facie case for retaliation under FEHA requires the plaintiff to show 1) plaintiff was engaged in activity protected under FEHA; 2) defendant subsequently subjected plaintiff to adverse action; and 3) a causal link between the first to elements.  Akers v. County of San Diego (2002) 95 Cal.App.4th 1441.  A plaintiff may demonstrate the causal link by showing that the adverse action took place after the protected activity and in reasonable proximity in time to the protected activity.  Fisher v. San Pedro Peninsula Hosp. (1989) 214 Cal.App.3d 590.  A lapse of several months may be sufficiently close in proximity to show a causal link.  Flait v. North Am. Watch Corp. (1992) 3 Cal.App.4th 467, 478; see also Nidds v. Schindler Elevator Corp. (9th Cir.1996) 113 F.3d 912.

Just as with discrimination claims in general, this prima facie case creates a rebuttable presumption of discrimination once plaintiffs meet this burden, shifting the burden to defendants to demonstrate a legitimate, non-discriminatory basis for its conduct.  See Addy v. Bliss & Glennon (1996) 44 Cal.App.4th 205, 217; Nidds v. Schindler Elevator Corp. (9th Cir.1996) 13 F.3d 912; Sada v. Robert F. Kennedy Med. Ctr. (1997) 56 Cal.App.4th 138, 156;  see also Guz v Bechtel Nat’l, Inc. (2000) 24 Cal.4th 317, 354-355.

Once the defendants meet this burden, the presumption disappears, requiring the plaintiffs to provide evidence sufficient to raise a rational inference of intentional discrimination or retaliation.  Guz v Bechtel Nat’l, Inc. (2000) 24 Cal.4th 317, 355-357.   As stated in Guz, at 362,

summary judgment for the employer may be appropriate where, given the strength of the employer’s showing of innocent reasons, any countervailing circumstantial evidence of discriminatory motive, even if it may technically constitute a prima facie case, is too weak to raise a rational inference that discrimination occurred.


The burden shifts back to the plaintiff to adduce substantial, responsive evidence demonstrating that the employer’s proffered reason was a mere pretext.  Addy v. Bliss & Glennon (1996) 44 Cal.App.4th 205, 215, 217; see also Guz v Bechtel Nat’l, Inc. (2000) 24 Cal.4th 317, 354-355.

 “Pretext may ... be inferred from the timing of the company's termination decision, by the identity of the person making the decision, and by the terminated employee's job performance before termination.”  Flait v. North American Watch Corp. 91992) 3 Cal.App.4th 467, 479, quoted in Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, at 271-272.   

            Evidence showing that the defendants’ proffered non-discriminatory motive was a mere pretext must be “specific” and “substantial.” Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33, 46; Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 225; Hersant v. Department of Social Servs. (1997) 57 Cal.App.4th 997, 1007.   

At least in combination with other facts, “stray remarks,” biased comments by supervisors or co-workers, may be relevant to demonstrate retaliation depending on the context and circumstances, even if not directly related to the specific conduct at issue.  Reid v. Google, Inc. (2010) 50 Cal.4th 512, 541. 

Defendant does present a number of facts, based almost entirely on Pegg’s own testimony and documents, that could support a legitimate motive based on Plaintiff’s possible failure to meet standards or expectations.  It shows that on 2 April 2013 Pegg documented that conferences with Plaintiff would be more efficient if Plaintiff brought an agenda to the meetings (fact 13); Pegg claims that in June 2013 he felt that Plaintiff might not yet be carrying a full workload and Plaintiff had not yet “had time to fully demonstrate her competency” in all areas even though the evaluation says none of this (facts 14-15); Pegg made an Employee Performance Planner (EPP) for Plaintiff on 5 June 2015 which noted a “desired growth area” for Plaintiff  which listed 5 goals with target dates and Plaintiff did not meet all of the target dates (facts 16-20); Plaintiff told an employee as early as September or October 2013, before the alleged disputes came to a head with the alleged “whistleblower” meeting, that Pegg was “50/50 about passing me” (fact 24); Pegg obtained feedback on Plaintiff at Fies’s suggestion and he found some information that Plaintiff could leave people “unclear on next steps” or could give “confusing” messages or could “come across” to some as “ditzy” (facts 30-31); Fies and Young told Pegg that they was disappointed in the amount of time it took Plaintiff to prepare a leave or grievance-response letter (facts 32-33);  Pegg felt that there were good reasons to pass Plaintiff and keep her but also good reasons to terminate her and made a list to help think (fact 34); several documents Pegg created show some concerns about Plaintiff (fact 35); Plaintiff’s timeliness and quality were sometimes not acceptable (fact 38).

However, Defendant presents facts and cites evidence that actually demonstrate Plaintiff’s claim that these alleged reasons were a mere pretext.  It shows that Plaintiff had very good reviews halfway through her probationary period with nothing negative at all in the review; that the negative reviews were limited and that they and decision to terminate followed Plaintiff’s complaints about Pegg’s handling of disability and other FEHA issues; that Plaintiff had told Young that Pegg was mishandling the interactive process, failed to fully investigate allegations about discrimination; Plaintiff told Pegg of at least 7 employees whose disability rights had been violated; on 7 or 12 Nov. 2013 Pegg told Plaintiff to come into his office and accused her of being a “whistleblower”; not until Nov. 2013, shortly before the probationary ending date and after the “whistleblower” issues had arisen, did Pegg tell Fies that he was not sure he would pass Plaintiff; when Pegg obtained feedback on Plaintiff, he obtained numerous statements that Plaintiff was professional, personable, and helpful and the only cited negative comments were that she could leave people “unclear on next steps” or could give “confusing” messages or could “come across” to some as “ditzy”;  Pegg decided to terminate Plaintiff over Thanksgiving holiday.   Facts 15-14, 25-31, 39. 

This demonstrates that Plaintiff was a good employee and had good reviews until the disputes arose over Pegg’s handling of disability or FEHA issues and until Pegg called Plaintiff a “whistleblower,” and that the negative reviews and termination happened shortly after the confrontation.  This is sufficient to support an inference of pretext.

Even if the court were to find that Defendant has met its burden, Plaintiff certainly presents evidence that it was a mere pretext.  In addition to highlighting the above evidence which supports her position and which Defendant itself provides, she demonstrates much more along the same lines. 

Plaintiff shows, in brief, that she was acting in accord with her duties, that Pegg’s complaints about bringing an agenda to meetings were not applied to Price, and that she was a good worker with an excellent evaluation prior to Pegg becoming aware of her complaints about his handling of disability and FEHA issues, culminating in the “whistleblower” meeting, soon after which Pegg terminated her.  All of this is sufficient to show that the complaints about her performance were a pretext, indicating that they were minimal, especially in comparison with the recorded good performance and opinions, that they were trumped up ex post facto explanations, and that the real reason may have been the “whistleblower” or “troublemaking” conduct of Plaintiff.

Plaintiff shows that her duties necessarily involved her in the interactive process and issues of disability accommodation or the like because they would affect disciplinary issues (fact 11, P’s 2-7); after Pegg asked her to bring an agenda to meetings, Plaintiff did so and Pegg never required Price to bring an agenda to meetings (facts 13, 22); the June 2013 performance evaluation only has good reviews of Plaintiff and says nothing about concerns regarding Plaintiff (facts 14-15, P’s 18); the EPP which apparently raises employment issues regarding Plaintiff was never discussed or considered in the termination decision and Pegg had stated that it was only a pilot program being tested and not actually used for evaluating Plaintiff (facts 16-20); although Plaintiff had testified initially that she though Pegg had told her in Sept. or Oct. that he was “50/50” on passing her , Plaintiff then looked at her calendar and noticed that that had actually occurred on 18 Nov.2013, only 5 days after the “whistleblower” talk (fact 24, P’s 37-39, 47); Pegg received more positive than negative feedback about Plaintiff from other employees who generally indicated that Plaintiff had more good qualities than bad and that they liked working with Plaintiff, found Plaintiff to be “direct” and was making “significant progress” and the like (facts 30-34).

Several employees had problems with their disability and interactive-process rights which Pegg violated or allegedly violated, Pegg approved disciplining employees who were involved in the interactive process already, Pegg rejected disciplining an employee who was alleged to have repeatedly engaged in discriminatory conduct, and employees have claimed that Pegg retaliated against them regarding disability  (P’s 12-14, 16-17, 20-36, 57, 59-69); Plaintiff claims that she complained about Pegg’s violations to Young in Sept.2013 and although Young does not remember such a specific discussion, she admitted that she may have talked to Pegg about some of Pegg’s alleged violations and that Pegg might have realized she was talking about Plaintiff’s claims (P’s 33-36, 39) while Plaintiff further raised trouble with Young and Pegg when she wanted to include Pegg as a witness in the Valley of the Moon harassment issue (P’s 40-45, and Pegg knew of Plaintiff’s complaint by November 2013, at least partly from Young and Price (P’s 54-56)

Pegg hired a less experienced person to replace Plaintiff and this new person does not disagree with Pegg, making the climate “easier” according to Price (P’s 1, 49); the discipline policy for probationary employees is progressive and includes warnings but Plaintiff received no progressive discipline or warnings (P’s 50-52).

            Plaintiff’s objections are overruled. but they do not affect the outcome of the motion.  Many objections, such as 1-6, are improper claims that the evidence is irrelevant, largely because of simple factual disputes about the evidence’s role or import.  Plaintiff claims, for example, in objections 2-6, that the evidence about the Employee Performance Planner which Pegg created and discusses is irrelevant because evidence shows it was not used in the termination decision and was only a pilot program that would not count towards evaluating her.  This does not affect the relevance of admissibility of this evidence and instead is simply evidence creating a dispute about its role.  This may affect the outcome of the motion and whether there is a triable issue but the evidence is not rendered “irrelevant” or otherwise inadmissible.  Others, such as objections 7, 9, and 10, improperly attack the facts asserted, not the evidence cited.  Objections may only be to the evidence, not to “facts” in the separate statement.  CRC 3.1352, 3.1354.  In objection 7, for example, Plaintiff is correct that the evidence Defendant cites does not support the fact asserted, as noted in Fact 22, but this simply means that the fact is not established.  It does not mean that the evidence is inadmissible or improper.  Objection 11 improperly attacks assertions about statements made to Pegg as inadmissible hearsay but the evidence seems admissible because proffered not to demonstrate the truth of the assertions but to demonstrate what Pegg believed.

            As such, Defendant’s motion for summary judgment is denied in its entirety.  Plaintiff is to draft a proposed order consistent with this ruling.


3.  MCV-234746 In Re 2014 Gardenview Place:
            Claimants Hogans have moved  to compel discovery and deemed request for admissions admitted after Northwest failed to respond. Northwest opposes, arguing that it is, effectively, a non-party to the action as it has been discharged from liability, and has no further role to play in the CC § 2924j determination of who has legal claim to the excess funds.

The Hogans’ motion to strike the opposition as untimely is denied—the opposition was timely filed. Northwest’s request for judicial notice is granted.

Plaintiff Northwest Trustee’s “discharge” from liability under CC § 2924j(c) refers to “responsibility for the disbursement of sale proceeds.” Hogans points out that Northwest was not dismissed from the action, nor has it filed a declaration of nonmonetary status. Thus, the Hogans argue, Northwest remains a party to the action and is subject to the rules of discovery.

What the Hogans fail to understand is that the entire gravamen of this suit is which claimant has a better claim over the excess funds.  Northwest’s discharge effectively eliminated them from the suit as their only involvement would be with regards to the disbursement of the sale proceeds. Since Northwest has been discharged from liability with respect to the disbursement, any discovery propounded on them would be irrelevant to the matters encompassed by CC § 2924j.

Accordingly, the motion it denied. Northwest’s request for sanctions is denied. Northwest shall draft an order consistent with this ruling.


4.  SCV-247931 Emis v. Emis:

                Defendant Judy Emis failed to present sufficient evidence that the settlement agreement was breached. The evidence by the Defendant came by way of a declaration submitted in reply to the opposition. The Plaintiff does not have an opportunity to address this new evidence and this deprives her of due process. Further, the Plaintiff has presented argument and evidence that contradicts the evidence submitted by the Defendant.

A motion under Code of Civil Procedure § 664.6 permits a judge to act as trier of fact. (Skulnick v. Roberts Express, Inc. (1992) 2 Cal. App. 4th 884.)

Here, there are factual disputes as to whether the Plaintiff has fully performed under the terms of the agreement. Further, there are factual disputes as to whether the Defendant has fully performed. Accordingly, the motion is continued to the short cause calendar on January 20, 2016 at 8:30am in Department 19 to provide the parties an opportunity to present evidence by way of live testimony. The Plaintiff’s objections are granted. The Plaintiff shall draft an order consistent with this ruling.


5.  SCV-255207 Faria v. Maki:

Attorney Mitchell’s motion to be relieved as counsel is granted.  Attorney Mitchell shall draft an order for this court’s review and signature.


6.  SCV-256750 Driver v. Lago:
            Motion is granted, Defendants are to pay rent of $1,684 beginning December 5, 2015 into a blocked account. Plaintiffs’ objection nos. 8 and 9 are sustained, the balance are overruled.  The Plaintiffs shall draft an order consistent with this ruling.


This case involves allegations that the Defendants engaged in a fraudulent scheme involving the promise of obtaining a loan modification, and to file bankruptcy. The Plaintiffs contend that they were delinquent on a loan and the Defendants promised to help them obtain modification, and to file bankruptcy. The Plaintiffs allege that Defendants also defrauded the Plaintiffs into signing a lease with a purchase option with Defendants Lopez and Gonzales. The Plaintiffs allege that the Defendants took their money, but did not obtain a loan modification, or file a bankruptcy case. Further, the Plaintiffs allege that the Defendants have been living at the Property rent free. In response, the Plaintiffs filed this action to recover damages, and MCV 253318 (the UD Action) to recover possession of the property—these two actions were consolidated.

Defendants Lopez and Gonzales have filed a cross-complaint alleging that they exercised the option to purchase the property.

This is on calendar for the Plaintiffs motion to order the Defendants to pay rent during the pendency of the action per CCP § 1170.5. The Plaintiffs argues that under CCP § 1170.5, that is the unlawful detainer trial is delayed longer than 20 days, then the Plaintiffs are entitled to rent payments on a showing that of probability of success on the merits. In support of the motion, the Plaintiffs submit the lease, and declarations indicating that the Defendants have been chronically in arrears of rent—having made no rent payment since December 2014. The Plaintiffs claim that the rent due is $1,684. The Plaintiffs also argue that the Defendants are not entitled to any set-offs, despite the Defendants claims thereto for labor and materials for improvements to the property.

In opposition the Defendants argue that they do not owe rent because they have improved the property and are entitled to a set-off. In support the Defendants offer a handwritten note that purports to indicate all of the money and labor they have put into the mobile home during this time. The Defendants contend that they have overpaid rent. In compromise, the Defendants request that the court allow them to pay $1,100 in rent, $900 of which to go directly to the park.


CCP § 1170.5 provides:


If trial is not held within the time specified in this section, the court, upon finding that there is a reasonable probability that the plaintiff will prevail in the action, shall determine the amount of damages, if any, to be suffered by the plaintiff by reason of the extension, and shall issue an order requiring the defendant to pay that amount into court as the rent would have otherwise become due and payable or into an escrow designated by the court for so long as the defendant remains in possession pending the termination of the action.

The determination of the amount of the payment shall be based on the plaintiff's verified statement of the contract rent for rental payment, any verified objection thereto filed by the defendant, and the oral or demonstrative evidence presented at the hearing. The court's determination of the amount of damages shall include consideration of any evidence, presented by the parties, embracing the issue of diminution of value or any set off permitted by law.


The statute authorizing a trial court order to deposit rent into an escrow designated by the court upon a continuance of an unlawful detainer trial limits the amount that the court can require to be deposited to prospective damages the landlord may suffer as the result of granting a continuance of the trial date to a tenant in possession; the deposit of past rent or damages is not authorized under the statute. (Garcia v. Cruz (2013) 221 Cal.App.4th Supp. 1.)

Having reviewed the claims, it does not appear that the Defendants are entitled to a set off for future rent. Moreover, the set-off they claim is not in the lease, or in any other written agreement. The Defendants claim a total set off of $14,408, but rent arrearages total more than $18,000. The Defendants have no cogent argument as to why they should not be subject to pay the rent during the pendency of the action.


7.  SCV-256887 Fowler v. Driversdoor:

Plaintiff moves to consolidate the present action with a related limited civil matter in Solano county. The instant matter before the Sonoma Superior Court is a personal injury action wherein the Plaintiff alleges that he was injured when an in drunk patron at the races held at Sears Point raceway hit him while he was driving a quad. The Solano County matter is a property damage case, where the Solano County plaintiff there alleges that the Plaintiff here drove the quad without permission (and while inebriated), and is seeking the cost of the quad. The Solano County plaintiff is a defendant in the instant action.

The Plaintiff contends that the Solano County action and this action present common parties, both Singler and Fowler are named in both actions, and common facts, as both actions involve the collision between the truck and quad that occurred on March 23, 2013.

Singler opposes, contending that the Solano County matter is close to trial, and deals with the discrete issue of whether Fowler had permission to use the quad at the time he was driving. Singler contends that he did not give Fowler permission to drive the quad while Fowler was drunk. Singler contends that consolidation is not proper.

Fowler replies, arguing that the Solano County matter is not ready for trial, as discovery has not been completed.

A judge in one court may order a case pending in another court transferred to the judge's court if it: (1) involves a “common question of fact or law” with a case pending in the judge's court; (2) meets the criteria for coordination set forth in CCP § 404.1; and (3) the cases are “not complex” under guidelines established by the Judicial Council. (See CCP § 403.)

CCP § 404.1 provides:

Coordination of civil actions sharing a common question of fact or law is appropriate if one judge hearing all of the actions for all purposes in a selected site or sites will promote the ends of justice taking into account whether the common question of fact or law is predominating and significant to the litigation; the convenience of parties, witnesses, and counsel; the relative development of the actions and the work product of counsel; the efficient utilization of judicial facilities and manpower; the calendar of the courts; the disadvantages of duplicative and inconsistent rulings, orders, or judgments; and, the likelihood of settlement of the actions without further litigation should coordination be denied.


Here, the two matters involve the same accident, and that the findings of fact in the Solano County action will have an effect on the instant matter. Singler’s contention that Fowler was inebriated and using the quad without permission will certainly weigh on the issues surrounding the collision between the truck and the quad. For instance, evidence of Fowler’s drinking will be relevant to both the question of liability for the property damage to the quad, and to the question of comparative fault in the personal injury action.  Further, having these issues decided in one forum is a more efficient use of judicial resources. 

Accordingly, the motion is granted.  The moving party is ordered to prepare a proposed order that conforms with this tentative ruling for the court’s review and signature.


8.  SCV-257449 Jiminez v. Enterprise RAC:
            The motion in this matter has been dropped by the moving party.



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