1. Art and Diseño

Tentative Rulings
February 2, 2015
Department 3
8:30 a.m.
NOTE: This Court does not follow the procedures described in Rules of Court, Rule 3.1308(a).
Tentative rulings appear on the calendar outside the court department on the date of the hearing,
pursuant to California Rule of Court, Rule 3.1308(b)(1). As a courtesy to counsel, the court also posts
tentative rulings no less than 12 hours in advance of the time set for hearing. The rulings are posted on
the court’s website (www.shastacourts.com) and are available by clicking on the “Tentative Rulings”
link. A party is not required to give notice to the Court or other parties of intent to appear to present
argument.
In addition, the Court also posts proposed Case Management Orders, which may be accessed by going to the
shortcut for “Case Management” on the court’s website at www.shastacourts.com.
BEGUIN VS. SFORZINI
Case Number: 14CV672
Proposed Tentative Ruling on Order to Show Cause re Sanctions: The Court has received a default
judgment prove up package from the Plaintiff. This matter is continued to Monday, February 23, 2015 at
8:30 a.m. in Department 3. If the default judgment is executed, the February 23, 2015 hearing will be vacated.
No appearance is necessary on today’s calendar.
CLARK, ET AL VS. TRAFFIC SOLUTIONS, ET AL
Case Number: 170596
Tentative Ruling on Plaintiffs’ Motion for Attorney Fees: The Court notes that this motion is unopposed.
An opposition was lodged by non- party Twin City Fire Insurance Company which requested the right to
intervene. The request to intervene was not brought by ex parte application or notice motion and therefore their
request was denied by a minute order dated January 28, 2015 and their opposition was returned unfiled. The
opposition was not considered in preparing this memorandum.
Plaintiffs request an award of attorney’s fees as the prevailing party in the amount of $180,981.35
pursuant to Labor Code section 218.5(a). Labor Code section 218.5(a) provides in pertinent part, “In any action
brought for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions, the
court shall award reasonable attorney’s fees and costs to the prevailing party if any party to the action requests
attorney’s fees and costs upon the initiation of the action.” Plaintiffs argue that they brought an action for the
nonpayment of wages and are therefore entitled to “reasonable attorney’s fees”. Plaintiffs were successful at
trial on a single cause of action for retaliation (the Seventh Cause of Action in the Second Amended
Complaint). The Court’s minute order dated October 3, 2014 indicates that the Court found that “As to Cause
of Action #7, Plaintiff’s have produced sufficient evidence to prove the defendants illegally retaliated against
the Plaintiffs (Labor Code Section 98.6) for making complaints about the proper payment of wages, including
but not limited to the calculation of wage rates, meal periods, rest periods, and travel pay.” The minute order
continues by providing each Plaintiff with compensatory damages plus a statutory penalty of $10,000.
The Seventh Cause of Action in the Second Amended Complaint is labeled “Retaliation” and provides
factual allegations related to Defendants retaliating against Plaintiffs for complaining that wages were
improperly computed. The Seventh Cause of Action (paragraphs 45 & 46) reflects that the crux of this cause of
action is that Defendants retaliated against the Plaintiffs. Paragraph 47 indicates that Plaintiffs have been
1
damaged “as a result of said retaliation, in the form of lost wages and lost employment hours, and lost fringe
benefits.” The Seventh Cause of Action does not expressly reference Labor Code section 98.6.
Plaintiffs have not cited any case authority where attorney’s fees have been awarded pursuant to Labor
Code section 218.5 for a retaliation cause of action; rather, their argument is based on a strict reading of Labor
Code section 218.5 which provides for reasonable attorney’s fees in “an action brought for the nonpayment of
wages.” Plaintiffs argue that the retaliation action was for the “nonpayment of wages”. A review of the
Seventh Cause of Action clearly shows that the cause of action was based on retaliation and Plaintiffs were
“damaged as a result of said retaliation, in the form of lost wages and lost employment hours, and lost fringe
benefits, according to proof.” Plaintiff’s Second Amended Complaint ¶ 47. Whether Plaintiffs are entitled to
attorney’s fees is based on whether their Seventh Cause of Action was for “nonpayment of wages” or for
retaliation.
In Kirby v. Immoos Fire Protection, Inc. the Supreme Court of California held that Labor Code section
218.5 does not authorize the award of attorney’s fees for a successful claim brought under Labor Code section
226.7 for failure to provide meal and rest breaks (2012) 53 Cal. 4th 1244. Labor Code section 226.7(a) provides
that “No employer shall require any employee to work during any meal or rest period mandated by an
applicable order of the Industrial Welfare Commission.” It continues in subdivision to provide that legal remedy
for a violation of subdivision (a) is an “additional hour of pay.” The employer’s failure to provide the
additional hour of pay does not form part of a Labor Code section 226.7 violation. Id. at 1256-57. The failure to
provide the meal or rest break is what triggers a violation of Labor Code section 226.7. Accordingly a Labor
Code section 226.7 claim is not brought for the nonpayment of wages; it is an action for non-provision of the
meal or rest breaks. Id. at 1257. The language “action brought for” in Labor Code section 218.5 is the alleged
violation, not the desired remedy. Id at 1258.
The Plaintiffs find themselves in the same situation as the prevailing party in Kirby. Labor Code section
98.6(a) provides in pertinent part, “A person shall not discharge an employee or in any manner discriminate,
retaliate, or take any adverse action against any employee or applicant for employment because the employee or
applicant engaged in any conduct delineated in this chapter, including the conduct described in subdivision (k)
of Section 96, and Chapter 5 (commencing with Section 1101) of Part 3 of Division 2 . . .” Labor Code section
98.6(b)(1) then provides that the remedy for the discriminated against employee is reinstatement and
reimbursement for lost wages and work benefits caused by those acts of the employer. This language mirrors
that of Labor Code section 226.7 with the exception of the culpable acts. Here like in Kirby the alleged
violation is not the nonpayment of wages but rather independent culpable acts. The award of compensatory
damages provided by the Court after trial was the remedy based on retaliatory conduct just like the award in
Kirby was for compensatory damages in the form of one additional hour of pay based on a failure to provide
meal and rest breaks.
For these reasons, the Seventh Cause of Action is not an action “brought for nonpayment of wages”;
rather it is an action brought for retaliation. As such the attorney’s fees provision of Labor Code section 218.5
is inapplicable and Plaintiffs are not entitled to recover attorney’s fees.
The motion is DENIED. Plaintiffs are instructed to prepare the order.
DANIEL V. SHASTA ORTHOPAEDICS
Case Number: 178310
Tentative Ruling on Demurrer to the First Amended Cross-Complaint: This matter was continued by
stipulation of the parties to Monday, February 17, 2015 at 8:30 a.m. in Department 3. No appearance is
necessary on today’s calendar.
2
FILLMORE VS. PROVENCIO, ET AL
Case Number: 179742
Tentative Ruling on Motion to Compel Responses to First Set of Form Interrogatories and Requests for
Production and to Have Matters Deemed Admitted in the First Set of Request for Admissions: The Court
notes that the motion is unopposed.
Defendants’ motion is GRANTED. Plaintiff shall provide responses, without objections, to Defendant’s
Form Interrogatories, Set One and Request for Production of Documents, Set One, within 30 days of service of
notice of entry of order. Each of the requests in the Request for Admissions, Set One is deemed admitted by the
Plaintiff.
An order has been provided to the Court and will be executed after the hearing.
IN RE BIRMINGHAM
Case Number: 181406
Tentative Ruling on Petition for Transfer of Structured Settlement: California Insurance Code section
10137 sets forth the conditions of granting a petition for transfers of structured settlement payment rights, and
provides that a transfer of structured settlement payment rights must be “fair and reasonable and in the best
interest of the payee, taking into account the welfare and support of his or her dependents.” Mr. Birmingham is
an unemployed unmarried 18 year old man that claims a financial hardship without providing any specific
details related to said hardship. Mr. Birmingham also states that the lump sum he would receive pursuant to this
transfer would be used to purchase a home; however approving the transfer will leave Mr. Birmingham with a
monthly income of only $400.00, an amount insufficient to pay the mortgage associated with the home
purchase. Granting the transfer as requested would create a substantial financial hardship for Mr. Birmingham
and therefore the transfer is not in his “best interests”.
The Petition is DENIED without prejudice.
IN RE HANSEN
Case Number: 181410
Tentative Ruling on Petition for Transfer of Structured Settlement: California Insurance Code section
10137 sets forth the conditions of granting a petition for transfers of structured settlement payment rights, and
provides that a transfer of structured settlement payment rights must be “fair and reasonable and in the best
interest of the payee, taking into account the welfare and support of his or her dependents.” Ms. Hansen is a
disable divorced 40 year old woman with one minor dependent with special needs. Ms. Hansen is not claiming
a financial hardship nor does she state that the money requested is for necessities. The transfer proposed by
Petitioner would result in Ms. Hansen giving up $41,400 in future payments for a present payment of $7,000.
The equivalent interest rate for this transaction is 16.04% and the quotient (net payment divided by discounted
present value) is 22.77%. The interest rate is high for this type of transaction and the quotient is one of the
lowest seen by this Court. The terms of this transfer are not favorable to Ms. Hansen. The Petition does not
establish that given the terms of this transaction that the transfer would be in Ms. Hansen’s best interest. There
is no claimed financial hardship nor is the money needed for necessities which precludes the Court from finding
that the transfer with an equivalent interest rate of 16.04% is in her best interest.
The Petition is DENIED without prejudice. A proposed order was provided which will be modified
after the hearing to reflect the Court’s final ruling.
3
IN RE LANKFORD
Case Number: 180555
Tentative Ruling on Petition for Change of Name: The Court requires proof of service on the minor’s father
before the petition may be granted.
IN RE SNYDER
Case Number: 181167
Tentative Ruling on Petition for Change of Name: The Court requires proof of publication before the Petition
can be granted.
JOHNSON VS. CHENEGA
Case Number: 179416
Tentative Ruling on Motion to Compel Further Response to Demand for Production of Documents:
Plaintiffs seek to compel further responses related to the personnel/employment records of nine former
employees of defendant, Chenega Security & Protection Services, LLC (CSPS). Plaintiffs allege that the
personnel records are relevant to show a discriminatory atmosphere or corporate mindset against persons in a
protected category or who engaged in a protected activity like the plaintiffs.
Both sides acknowledge the profound privacy rights an employee has in his or her employment records.
Disclosure can only occur upon a substantial showing of need which outweighs those privacy interests. Even if
the Court were to allow the disclosure, it would only do so by means determined to be the least intrusive into
the third parties’ privacy rights. This might include, for example, allowing a limited or redacted disclosure
and/or an in camera review of the disputed records (following the suggestion expressed by the Third District
Court of Appeal in El Dorado Savings & Loan Association et al. v. The Superior Court of Sacramento County
(1987) 190 Cal.App.3d 342).
At the previous hearing on January 20, 2015, the Court continued this matter to today’s date and ordered
Defendants to provide a Privilege Log of the disputed documents. The Privilege Log has been received and
reviewed by the Court. The Privilege Log appears to contain the reasons for discipline and termination that are
at the heart of Plaintiffs’ claim of right to these documents; however, there may be additional information in the
documents themselves that reflect the discipline or termination was a pretext for retaliatory motives.
The Court orders Defendants to produce the documents identified in the Privilege Log to the Court for
an in camera review no later than Friday, February 13, 2015. The documents are to be provided to the Court
only and in a sealed envelope marked confidential. The documents will be maintained sealed in the confidential
side of the Court’s file. The Court will then review the documents in camera to see if they contain any
additional information that would require disclosure. After the Court’s review an order will be entered as to the
whether the documents will be produced and if they are to be produced how the information is to be protected
i.e. redaction, protective order etc. This matter is continued to Monday, February 23, 2015 at 8:30 a.m. in
Department 3. The Court will make its final order on this matter at that time and return the documents to
counsel for the Defendant.
No appearance is necessary on today’s calendar.
4
******************************************************************************************
February 3, 2015
8:30 a.m.
******************************************************************************************
WOODROME V. PONZIO
Case Number: 175443
Tentative Ruling on Emergency Ex Parte Application to Continue Trial: The Court has received from
Plaintiff’s counsel an “Emergency Ex Parte Application to Continue Trial” seeking to place on the Court’s
February 3, 2015 calendar a Motion to Continue Trial. It should be noted that trial is scheduled to commence
on February 10, 2015. The application includes a stipulation from all counsel that the matter may be heard on
the date requested, subject to the Defendant being allowed to file an opposition at the hearing and Plaintiff
waiving a reply. This request is highly unusual and clearly seeks to sidestep the appropriate procedure of
scheduling an ex parte application for an order shortening time. Normally, the Court would not allow this
application to be filed much less make any rulings pertaining to it. However, given the exigency and the
stipulation of the parties, the Court exercises its incidental powers pursuant to CCP Section 128, and based upon
the interests of efficiency and as a courtesy to counsel, the Court will allow the matter to be heard. This should
not be considered precedent for this procedure being allowed in the future. Given the nature of the motion and
stipulation, no tentative is issued. Counsel should be prepared to argue the matter and the Court will endeavor
to rule from the bench.
5