Court Trial SHC

Cal. Super. - 2nd Dist.December 5, 2014

123 23561 378401583 562400020067960 113454 21905 89 SUPERIOR COURT OF CALIFORNIA, MINUTE ORDER TIME: 09:00:00 AM JUDICIAL OFFICER PRESIDING: Vincent O'Neill COUNTY OF VENTURA VENTURA DATE: 02/03/2016 DEPT: 41 CLERK: Julie Childs, Marisela Soto REPORTER/ERM: None CASE NO: 56-2014-00461015-CU-JR-VTA CASE TITLE: Mark Strait vs Billie Niedert CASE CATEGORY: Civil - Unlimited CASE TYPE: Judicial Review - Other EVENT TYPE: Court Trial (SHC) STOLO APPEARANCES STOLO WILLIAM A. REICH, counsel, present for Respondent(s). Billie Niedert, Respondent is present. Alfred R. Keep, counsel, present for Appellant(s). Mark Strait as executor of the Estate of Edward Strait deceased, Appellant, present. Stolo 2nd Day of Trial Prior to court reconvening, the plaintiff/respondent's exhibits 11-16 are marked for identification. At 10:05 am Court reconvenes with plaintiff(s), defendant(s) and counsel present as noted above. Billie Niedert, previously sworn, resumes the stand for further redirect examination by Mr. Riech on behalf of plaintiff/respondent . Exhibits O and 11 are admitted into evidence without objection. At 10:15 am Recross examination of Billie Niedert commences by Mr. Keep on behalf of defendant/appellant . At 10:17 am, witness Niedert is completed. At 10:18 am Mark C. Strait, called pursuant to Evidence Code 776, is sworn and examined by Mr. Riech on behalf of plaintiff/respondent, on direct . Exhibits 14,7,5,6,E,8,9 and 15 are referred to. VEN-FNR-10.03 MINUTE ORDER DATE: 02/03/2016 Page 1 DEPT: 41 CASE TITLE: Mark Strait vs Billie Niedert CASE NO: 56-2014-00461015-CU-JR-VTA At 11:08 am exhibits 12,13,14 and 15 are admitted over defense objection. Exhibit 7 is offered as to the last paragraph only; whereupon the court grants admission in it's entirety but will consider only the portion of the exhibit as offered. Exhibit 8 is offered as to page 1, paragraph 5 and page 2, paragraphs 1 and 2; whereupon the court grants admission in it's entirety but will consider only the portions of the exhibit as offered. At 11:13 am, defense counsel will reserve questioning of this witness for his case-in-chief. Plaintiff rests. At 11:14 am, the court directs a recess. At 11:25 am Court reconvenes with plaintiff(s), defendant(s) and counsel present as noted above. Defense case commences. Direct examination of Mark C. Strait, previously sworn, commences by Mr. Keep on behalf of Defendant/Appellant . Exhibit C is admitted for the limited purpose as discussed. Exhibits 15, D, and 1 are referred to. At 11:58 a.m., the court is in recess until 1:30 p.m. At 1:40 p.m. Court reconvenes with plaintiff(s), defendant(s) and counsel present as noted above. Mark Strait, previously sworn, resumes the stand for further Direct examination by Mr. Keep on behalf of Defendant/Appellant . Exhibit E is referred to. At 1:45 p.m., the court examines the witness. At 1:46 p.m., direct examination by Mr. Keep resumes. Exhibits F, 2, J, K and N are referred to. At 2:00 p.m., the direct examination concludes. The court examines the witness. At 2:01 p.m. Cross examination of Mark Strait commences by Mr. Reich on behalf of Plaintiff/Respondent . VEN-FNR-10.03 MINUTE ORDER DATE: 02/03/2016 Page 2 DEPT: 41 CASE TITLE: Mark Strait vs Billie Niedert CASE NO: 56-2014-00461015-CU-JR-VTA Defense counsel offers exhibit N; whereupon there is an objection to it's admission. After hearing arguments of both counsel, the court admits said exhibit over plaintiff's objection. At 2:36 p.m., the court directs a 10 minute recess. At 2:52 p.m. Court reconvenes with plaintiff(s), defendant(s) and counsel present as noted above. Defense case resumes. Gregory Michael Strait is sworn and testifies. Direct examination of this witness commences by Mr. Keep on behalf of Defendant/Appellant . (Deposition of Gregory Strait dated 9/23/15 is lodged with the court) Exhibit E is referred to. At 3:09 a.m., the court examines the witness. At 3:11 p.m., direct examination resumes by Mr. Keep. Exhibits I, J, K, L, and N are referred to. At 3:17 p.m. Cross examination of Gregory Strait commences by Mr. Reich on behalf of Plaintiff/Respondent . At 3:25 p.m. Redirect examination of Gregory Strait commences by Mr. Keep on behalf of Defendant/Appellant . At 3:27 p.m., witness G. Strait completed; to remain on call. Elizabeth Ann Vandenbosch is sworn and testifies. Direct examination of this witness commences by Mr. Keep on behalf of Defendant/Appellant . At 3:33 p.m. Cross examination of Elizabeth Vandenbosch commences by Mr. Reich on behalf of Plaintiff/Respondent . At 3:38 p.m., Defense rests. Plaintiff/Respondent requests to recall Gregory Strait on Rebuttal. Gregory Strait, previously sworn, resumes the stand for further examination by Mr. Reich, in rebuttal, on behalf of Plaintiff/Respondent . VEN-FNR-10.03 MINUTE ORDER DATE: 02/03/2016 Page 3 DEPT: 41 CASE TITLE: Mark Strait vs Billie Niedert CASE NO: 56-2014-00461015-CU-JR-VTA At 3:41 p.m., witness completed and excused. All parties rest. The court proceeds to hear arguments of counsel. The court issued its Tentative Decision from the bench, as follows: 1. Plaintiff's failure to sue Defendant Strait "as trustee" is a technical defect that did not prejudice Defendant and will be cured by inserting appropriate language in the judgment. 2. Plaintiff Niedert was an employee rather than an independent contractor when she worked as a caregiver for Grace Strait. 3. Plaintiff Niedert and family representatives agreed in December of 2012 that Plaintiff would be paid $6.50 per hour for her services as nightshift caregiver. She is entitled to back pay for her January hours, at the rate of $8 per hour (the minimum wage at the time) for her 48 nightshift hours, plus 4 hours at the undisputed daytime rate of $13 per hour. This total is $436. 4. Pursuant to Labor Code section 1194.2, Plaintiff Niedert is entitled to $416 as liquidated damages in connection with item 3, above. 5. Plaintiff Niedert is entitled to an additional $186 for her work in December. 6. The court declines to award waiting time penalties pursuant to Labor Code section 203 because the failure to pay full wages was not willful given the circumstances of the present case. The court stands in recess. Notice to be given by clerk. STOLO VEN-FNR-10.03 MINUTE ORDER DATE: 02/03/2016 Page 4 DEPT: 41