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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: 02/01/2015 at 3:38am



The Tentative Rulings for Monday, February 2, 2015 are:

Re:          Qualls v. Board of Retirement of Tulare County Employees’ Retirement Association

Case No: VCU255869

Date:        February 2, 2015

Time:       8:30 A.M. 

Dept.       1 - The Honorable Melinda Reed

Motion:   Hearing on Petition for Writ of Mandate by Jim Qualls

Tentative Ruling:   To Deny the Petition for Writ of Mandate by Jim Qualls.

Jim Qualls petitions this court for an administrative writ of mandate pursuant to Code of Civil Procedure section 1094.5. Qualls seeks an order directing the respondent, Board of Retirement of the Tulare County Employees’ Retirement Association (Board) to grant Qualls a service-connected disability retirement.

Qualls applied to the Board for a service-connected disability retirement in March of 2012. Qualls’ application alleges he is permanently incapacitated from performing his duties in the office of the Tulare County Agricultural Commissioner (County) due to severe depression, anxiety, stress, asthma, and high blood pressure. The application further states Qualls’ disorders were caused by the “continual retaliation” he suffered from 2008 to 2012 for reporting pornography and other inappropriate use of work computers; and by his superiors who “discriminated against [him] by making public [his] confidential personnel information to all department employees.” Qualls further identifies the adverse treatment as downgrading his performance evaluations, changing his job duties, and creating an “abusive and hostile atmosphere.” 

In February of 2013, the Board granted Qualls a non-service retirement. Thereafter, an administrative hearing officer was assigned to hear Qualls’ request for a service-connected disability and to recommend a disposition. After a hearing, the hearing officer issued an opinion finding that Qualls’ disabilities were not industrially caused or connected. The Board subsequently approved the hearing officer’s decision and denied Qualls’ application for a service-connected disability retirement.

Qualls contends that the Board’s decision constitutes a prejudicial abuse of discretion because (1) the hearing officer failed to correctly apply the law and (2) the findings of the hearing officer are not supported by the evidence. For reasons that follow, the court disagrees and concludes the record supports the hearing officer’s determination that Qualls’ disabilities do not arise out of his employment and his employment did not substantially contribute to his disabilities.

An employee’s right to disability retirement benefits is reviewed under the independent judgment test. (Singh v. Board of Retirement (1996) 41 Cal. App. 4th 1180, 1185.) Under this standard, the court examines the evidence to determine whether the agency’s findings are supported by the weight of the evidence. (Code of Civil Procedure section 1094.5(c).)  Weight of the evidence is synonymous with preponderance of the evidence. (Chamberlain v. Ventura County Civil Serv. Comm’n (1977) 69 Cal. App. 3d 362, 368.)

Qualls has the burden to prove the agency’s findings are not supported by the weight of the evidence. (Fukuda v. City of Angels (1999) 20 Cal. 4th 805, 817.)

In weighing the evidence, the court is to be assisted by the findings of the Board. In fact, the findings of the Board have a strong presumption of correctness. (Drummey v. State Board of Funeral Directors (1939) 13 Cal. 2d 75, 85.) In Fukada, the Supreme Court reiterated its determination in Drummey that considerable weight should be given to the findings of experienced administrative bodies made after a full and formal hearing, especially in cases involving technical and scientific evidence. (Fukada, supra, 20 Cal. 4th at p.812.)

Pursuant to Government Code section 31724, a county employee shall be retired by the Board if the member is permanently incapacitated physically or mentally from the performance of his duties. Government Code section 31720 provides that a member who is permanently incapacitated shall be retired if the “incapacity is a result of injury or disease arising out of and in the course of the member’s employment, and such employment contributes substantially to such incapacity.”

In order to establish that his disability is service-connected, Qualls has the burden to prove that there is a real and measurable connection between his disability and employment. A mere causal connection is not sufficient as there must be a showing that his employment “substantially contributed” to his disability. (Bowen v. Board of Retirement (1986) 42 Cal. 3d 572, 578; Gatewood v. Board of Retirement (1985) 175 Cal. App. 3d 31; DePuy v. Board of Retirement (1978) 87 Cal.App.3d 392, 398-399.) Moreover, an un-refuted medical opinion asserting a real and measurable connection between employment and disability may be rejected by the court if the opinion is not of such a character or weight to support the physician’s finding. (Roesch v. De Mota (1944) 24 Cal. 2d 563, 571; Valero v. Board of Retirement (2012) 205 Cal. App. 4th 960, 967.)

Here, Qualls argues that the medical evidence, particularly the reports and opinions of Drs. Margolis, Bates, and Holvik, establish there is a real and measurable connection between Qualls’ employment and his disabilities. However, the doctors’ reports are not persuasive because they are based upon Qualls’ uncorroborated and undocumented self-reporting about the cause of his disabilities, and Qualls’ self-reports are not credible.

As to Qualls’ claims of mistreatment at work, all appear to stem from a written complaint he made to the County in 2008 concerning his discovery of pornography on department computers. Upon receipt of the complaint, the County advised Qualls in writing that his complaint was being investigated and dealt with by management. Other than Qualls’ anecdotal testimony that he believed several employees were reprimanded as a result of the investigation, there is no evidence in the record revealing the extent of the problem disclosed by the investigation and what specific actions were taken by the County as a result of the complaint. Furthermore, there is no direct evidence that Qualls’ supervisors were dissatisfied that he made the complaint or that pornography problems continued after April of 2008. As such, on this record it is apparent Qualls’ complaint was appropriately addressed and resolved at that time.

In regard to Qualls’ claim that his supervisors downgraded his 2011 performance evaluation by giving him a “4” rating for report writing when he generally received an overall “6” rating, Qualls acknowledged his supervisors criticized his reports both before and after 2008.  He admitted report writing was not his strong point and that he had previously revised his reports upon the request of his supervisors. The evidence is unpersuasive that the 2011 report writing grade was unwarranted or unduly harsh. Accordingly, Qualls’ claim that the grade was given in retaliation for his 2008 pornography complaint is not credible.

As to Qualls’ contention that he was mistreated by Agricultural Commissioner Marilyn Kinoshita, his superior, he claims that Kinoshita purposefully put his confidential personnel information, including his 2008 pornography complaint, on a computer network assessable by other employees in 2010. However, the evidence is lacking in the first instance that Kinoshita was the person who placed the information on the network. Further, the documentary evidence shows as soon as Kinoshita was made aware of Qualls’ complaint, the information was removed from the network.  There is little in the record as to what other employees may have actually accessed and the error appears at worst to have been one of inadvertence. Thus, Qualls’ claims that Kinoshita disclosed his 2008 pornography complaint two years later to his co-employees for the purpose of harassing him and the disclosure created a hostile work environment are not credible.

In regard  to Qualls’ additional complaints about Kinoshita, the evidence is insufficient to show that Kinoshita’s demand for a doctors’ note when Qualls was absent and the reprimand she gave Qualls in 2011 for an incident involving his treatment of customers were unjustified. And there is insufficient evidence corroborating Qualls’ claim that Kinoshita offensively used a mocking tone of voice when speaking to him or that she was cold or distant. David Case, Qualls’ direct supervisor, specifically denied that Kinoshita spoke and acted in such a manner. As such, Qualls’ contention that these events and issues show Kinoshita created an abusive work environment and retaliated against him for making the pornography complaint is not credible.

Likewise, Qualls’ claim that Case harassed him or created a hostile work environment is not credible. Significantly, Qualls requested a transfer to Case’s division in 2011. As to his accusation that Case improperly assigned him to petroleum duties based on his physical disabilities, there is no evidence that the assignment was for more than one day or that Case was aware of the full extent of Qualls’ physical limitations. Qualls’ complaints that he was not given keys to office bathrooms and was told to “use the orchard” for restroom purposes, were sufficiently explained and denied by Case. In short, there is no persuasive evidence supporting Qualls’ contention that he was targeted by Case or that Case assigned tasks to Qualls based on personal animosity toward him.

Turning to the medical evidence, the record shows Qualls suffered from physical and mental problems. Physically, Qualls had high blood pressure, bad knees, asthma, and sleep apnea; and his mental issues included suicide ideation, alcohol abuse, prescription drug abuse, obsessive compulsive disorder, bipolar disorder, marital problems, problems with his children, and grief from the death of his mother. 

In the opinion of Drs. Margolis and Bates, Qualls’ employment contributed forty percent to these disabilities. In reaching their conclusions, both doctors depended entirely on Qualls’ self-reporting of alleged job stressors and Qualls’ belief that he was mistreated based upon his 2008 pornography complaint. Both doctors acknowledge they did not independently review Qualls’ employment records.

As to Qualls’ perception of his employment problems, Dr. Margolis report states:  “It should be noted that he [Qualls] was anxious, restless, in severe pain, had some slurring of speech, was a poor historian because he rambled, and it was difficult for him to stay focused on anything.  He did seem to have much preoccupation and mainly this was his sense of being victimized and not being taken care of.  This includes his last work situation in Visalia County (sic) for “not protecting me.”  He presents a sense of gloom and is concerned he will die soon if he goes back to work in the environment that he was in before.” 

Significantly, Dr. Margolis also opined that Qualls had a personality disorder that affected his work environment. His report further states:  “I do consider him permanently incapacitated from chronic medical problems, prior abuse, and job stress.  I do not feel that he would respond to any accommodations.  If he went into another county work situation, his personality disorder and his sense of being a victim would soon ‘poison’ his relationship with supervisors and peers and I doubt that he would be able to function in a meaningful work situation for more than a week or two.” (Emphasis added.)

Dr. Bates report states: “My conclusion is the examinee presented as somewhat credible but was quite focused in interview on the perceived shortcomings of the place of employment.  He repeatedly pressed the issue of the inappropriate pornography at the workplace that occurred years ago, which while certainly difficult and inappropriate, was also a smoke screen of sorts.”

As to Dr. Holvik, Qualls primary physician for over 13 years prior to the administrative hearing in this case, Qualls did not mention the 2008 pornography complaint or its alleged effect on his work to Dr. Holvik until 2011. Moreover, Dr. Holvik’s records show only one additional mention of an employment related issue.

In short, the medical evidence relied upon by Qualls to establish a real and measurable connection between his job and disabilities is not persuasive because the doctors’ reports are dependent on Qualls’ self-reporting of mistreatment that is not credible. Significantly, Dr. Bates’ report acknowledges doubt as to Qualls’ credibility on industrial causation. Moreover, Dr. Margolis’ opinion on causation lacks persuasive force based on his seemingly contradictory finding that Qualls suffers from a personality disorder that adversely affects his work environment. As such, the medical evidence, including the opinions of Drs. Margolis, Bates and Holvik, is not of such a character and weight to support a finding that there is a real and measurable connection between Qualls’ job and his disabilities.

In conclusion, an independent review of the record establishes that the weight of the evidence supports the conclusions of the hearing officer. Thus, the court finds Qualls has not met his burden to prove the Board abused its discretion by denying his application for a service-connected disability. Accordingly, the petition for writ of mandate is 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:              Zamora, et al. v. Narang Telefilms, et al.

Case No.:   VCU 256907

Date:          February 2, 2015

Time:         8:30 A.M. 

Dept.         1 – The Honorable Melinda Reed

Motion:    Motion by Plaintiffs Jorge B. Zamora and Cecilia Zamora to Set an Evidentiary Hearing for Judgment After Default

Tentative Ruling:  To deny the motion by Plaintiffs Jorge B. Zamora and Cecilia Zamora (collectively Zamora) to set an evidentiary hearing for judgment after default.

Here, proof is in the court’s file showing defendants were provided notice of this action by publication under Code of Civil Procedure section 415.50. However, there is no proof  Zamora has complied with the additional requirements of Code of Civil Procedure section 763.020 in order to properly effect service of the summons and complaint by publication in this quiet title action.    

Moreover, Zamora has not secured entry of default against defendants as required by Code of Civil Procedure section 585. Accordingly, after Zamora has submitted proof of compliance with the requirements of the code for service by publication, Zamora needs to request and obtain entry of default against the defendants before requesting default judgment.

Lastly, as to the hearing in this matter for judgment after entry of default, Zamora need not file a motion to set an evidentiary hearing and should simply schedule an evidentiary prove-up trial in this department with the civil clerks’ office. Furthermore, Zamora will need to submit evidence of a title report under Code of Civil Procedure section 762.040 in order to obtain a judgment quieting title in fee simple against all persons known and unknown.                 
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.

 

 


This concludes the civil tentative rulings



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