Excerpt: ...fn. 2.) Therefore, Defendant's motion for summary adjudication of the punitive damage claims is GRANTED. Defendant's motion for summary judgment is DENIED for the reasons set forth below. Plaintiffs contend that plaintiff Robert G. Fenstermacher was exposed to respirable asbestos fibers from Defendant's asbestos-containing steam traps while serving in the U.S. Navy aboard the U.S.S. Bon Homme Richard from 1965 to 1967. LEGAL STANDARDS FOR MOTIONS...

Excerpt: ...x Costs with respect to Defendant's Memorandum of Costs filed 6/9/2020, but not served on Plaintiffs until 6/22/2020. LEGAL STANDARDS FOR MOTIONS FOR RELIEF FROM DEFAULT Under Code of Civil Procedure section 473(b), "[t]he court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or...

Excerpt: ...id- to late-1970's, was exposed at construction sites on which he worked to respirable asbestos fibers from asbestos- containing stucco and fireproofing manufactured and/or furnished by Defendant to plastering and other contractors, including, inter alia, Joel McCray and Thomas F. Scollan. LEGAL STANDARDS FOR MOTIONS FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION "A party may move for summary judgment in an action or proceeding if it is contended ...

Excerpt: ...ising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference." (CCP § 36(d).) Further, "the court may in its discretion grant a motion for preference that is supported by a showing that satisfies the court that the interests of justice will be served by granting this preference." (CCP § 36(e).) MOTION FOR PREFERENCE Plaintiffs se...

Excerpt: ...NIED for the reasons set forth below. Plaintiffs contend that plaintiff Robert G. Fenstermacher was exposed to respirable asbestos fibers from Defendant's asbestos-containing steam traps while serving in the U.S. Navy aboard the U.S.S. Bon Homme Richard from 1965 to 1967. LEGAL STANDARDS FOR MOTIONS FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION "A party may move for summary judgment in an action or proceeding if it is contended that the action ha...

Excerpt: ...ng manufactured and/or furnished by Defendant to plastering and other contractors, including, inter alia, Joel McCray and Thomas F. Scollan. LEGAL STANDARDS FOR MOTIONS FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION "A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding." (CCP § 437c(a)(1).) "[T]he party moving for summary judgment b...

Excerpt: ...amages against Martinelli because Plaintiffs do not have evidence that Martinelli acted with malice, oppression, or fraud. STANDARD OF LAW "A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of acti...

Excerpt: ...ny order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense." (CCP § 2031.060(b).) As pertinent here, "[t]his protective order may include, but is not limited to, one or more of the following directions: . . . [t]hat all or some of the items or categories of items in the demand need not be produced or made available at all[,] . . . [and/or] [t]hat the i...

Excerpt: ...joint tortfeasor of Lorillard, where this Court has already conclusively adjudged in Berg v. Alta Bldg. Materials, RG 17-84928 (the "Prior Action," an asbestos torts action to which all of Plaintiffs, Defendant and Lorillard were parties, that Defendant is not a tortfeasor with respect to Plaintiffs or a joint tortfeasor with respect to Lorillard. Plaintiffs may file and serve an amended Complaint no later than Friday, July 31, 2020. ALLEGATIONS ...

Excerpt: ...ver, Plaintiffs have waived their Third and Fourth Causes of Action with respect to the MSA. (Opp. MSA at p. 1, fn. 1.) Therefore, the only issue remaining to be decided by this Court is whether Defendant is entitled to summary adjudication of Plaintiffs' punitive damages claim. The Court finds that Plaintiffs' written discovery responses are "factually devoid" with respect to Plaintiffs' punitive damages claims, thereby shifting the burden of pr...

Excerpt: ...ssors-in-interest Sacomo Manufacturing Co. or Sacomo-Sierra Inc. (collectively "Sacomo") during the period between 1963 and 1967. Defendant admits for purposes of this MSJ/MSA that it is the successor in interest to Sacomo. (Moving MPA at p. 2:19-21. See also Defendant's Undisputed Material Fact ("UMF") No. 19, constituting Plaintiff's admission that Decedent allegedly worked with or around Defendant's asbestos-containing products only between 19...

Excerpt: ...s this initial burden, then the defendant has the burden of demonstrating 'that the exercise of jurisdiction would be unreasonable.'" (Id.) "A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States." (CCP § 410.10.) "California's long-arm statute allows the exercise of personal jurisdiction to the full extent permissible under the U.S. Constitution." (Young v. Daiml...

Excerpt: ...ding asbestos-containing products, whether there were any asbestos-related OSHA violations, or whether any tests were conducted on its products to determine the asbestos content of those products. In this regard, General Cable cannot rely on its claim that it did not make or distribute asbestos-containing telephone wire during the relevant time period to refuse to respond to these special interrogatories. The questions relate to General Cable's k...

Excerpt: ...ype of metal worker, between approximately the late 1950's and the late 1970's. Defendant targets the threshold exposure sub-element of the essential element of causation by attempting to show that "the plaintiff does not possess, and cannot reasonably obtain, needed evidence-as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing." (See Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th...

Excerpt: ...g findings: (1) [t]he party has a substantial interest in the action as a whole[] [and] (2) [t]he health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation." (CCP § 36(a).) "An affidavit submitted in support of a motion for preference under subdivision (a) of Section 36 may be signed by the attorney for the party seeking preference based upon information and belief as to the medical ...

Excerpt: ...Ms. Artukovich in this action. BACKGROUND FACTS AND PROCEDURAL HISTORY Plaintiffs allege that decedent, Kris Elizarraras ("Decedent"), was exposed to asbestos from her father and brother, Guillermo and Glenn Vega (the "Vegas"), who worked cutting asbestos-cement pipe. More than a year ago, Defendant filed a Motion for Summary Judgment/Motion for Summary Adjudication (MSJ/MSA). Shortly before Plaintiffs' Opposition was due, Defendant produced docu...

Excerpt: ...ny regarding past drug use, both of prescription drugs and of recreational drugs/drugs of abuse. On 2/21/2020, the Court Ordered Plaintiff to serve an amended privilege log regarding redactions made to Plaintiff's medical records, which amended privilege log Plaintiff's counsel served on March 4, 2020. LAW RE: MOTIONS TO COMPEL "[A] civil litigant's right to discovery is broad." (Yelp Inc. v. Superior Court (2017) 17 Cal. App. 5th 1, 15.) "[A]ny ...

Excerpt: ...nday, October 26, 2020 at 8:30 a.m. in Dept. 18 subject to the additional Orders of Court set forth below. "A party to a civil action who is over 70 years of age may petition the court for a preference, which the court shall grant if the court makes both of the following findings: (1) [t]he party has a substantial interest in the action as a whole[;] [and] (2) [t]he health of the party is such that a preference is necessary to prevent prejudicing...

Excerpt: ...e[;] [and] (2) [t]he health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation." (CCP § 36(a).) The standard under subdivision (a) includes no requirement of a doctor's declaration. (Fox v. Superior Court (2018) 21 Cal. App. 5th 529, 534.) "To the contrary, a motion under subdivision (a) may be supported by nothing more than an attorney's declaration 'based upon information and belie...

Excerpt: ...lish a foundation for the expert opinion he purports to render. Plaintiff Richardo Ocampo ("Mr. Ocampo") has been diagnosed with malignant mesothelioma. He alleges that he was exposed to respirable asbestos while he worked in the presence of Defendant's employees as they disturbed asbestos- containing materials at the Synertek building in Santa Cruz during the 1980's. STANDARD OF LAW "When an application for an order has been made to a judge, or ...

Excerpt: ...usable neglect (CCP § 473(b)) regarding Plaintiffs' failure to timely file opposition papers to seven pending motions for summary judgment, including the present MSJ/MSA. Therefore, the Court has not considered Plaintiffs' Opposition papers. Nevertheless, the Court has carefully reviewed the evidence in support of Defendant's proffered Undisputed Material Facts with respect to what is effectively an unopposed motion. Plaintiffs' decedent Loren R...

Excerpt: ...embarrassment, or oppression, or undue burden and expense." (CCP § 2025.420(b).) "This protective order may include, but is not limited to, one or more of the following directions: . . . [t]hat the deposition be taken at a different time[,] . . . [t]hat the deposition be taken only on certain specified terms and conditions[,] . . . [t]hat the testimony be recorded in a manner different from that specified in the deposition notice[,] . . . [t]hat...

Excerpt: ...gations in a complaint." (Redfearn v. Trader Joe's Co. (2018) 20 Cal. App. 5th 989, 996.) The Court must determine "whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense." (Id.) The Court assumes "the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken." (Id.) "As a general rule ...

Excerpt: ...elevant part: "(d) In its discretion, the court may also grant a motion for preference that is accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference. (e) Notwithstanding any other provision ...

Excerpt: ...d., and Whitaker, Clark & Daniels, Inc. (the "joining defendants") each filed a "Notice of Joinder" in Defendant's Motion on, respectively, 5/1/2020, 5/8/2020 and 5/11/2020, which in each Notice purports to "join" in Defendant's pending Motion and "incorporates by reference" moving Defendant's evidence and arguments. Further, each Notice of Joinder purports that if Defendant withdraws the Motion or Defendant having already been dismissed, each jo...

Excerpt: ...irely by statute." (Id.) "It is axiomatic that the right to recover costs is purely statutory, and, in the absence of an authorizing statute, no costs can be recovered by either party." (Id. [internal citations omitted].) "Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding." (CCP § 1032(b).) Allowable costs under this statute are outlined in Code of ...

Excerpt: ...basis not inconsistent with the Constitution of this state or of the United States." (CCP § 410.10.) "[W]hen a defendant moves the trial court to quash service of summons for lack of personal jurisdiction, the plaintiff has the initial burden of proving that sufficient contacts exist between the defendant and California to justify the exercise of personal jurisdiction." (Pedus Bldg. Servs., Inc. v. Allen (2002) 96 Cal. App. 4th 152, 161 [interna...

Excerpt: ...parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference." (CCP § 36(d).) PLAINTIFF'S EVIDENCE Plaintiffs provide deposition testimony by Mr. Watts stating that he is 60 years old. (Plfs.' Ex. A at 16:12-15.) Plaintiffs also provide the declaration of Robert J. Fallat, M.D. ("Dr. ...

Excerpt: ...endant shall serve verified Responses to RFAs Nos. 1-35 admitting or denying each RFA without objections no later than fifteen (15) days after entry of this Order. In opposition to the Motions to Compel, Defendant principally argues that when Judge Kaus granted an ex parte application continuing trial in this case, he was without authority to also order that discovery deadlines would be governed by the new trial date. At the time of the ex parte ...

Excerpt: ...tiffs fail to submit sufficient evidence to create a triable issue of material fact regarding whether the franchisee was an agent of Defendant rather than an independent contractor. Defendant's Motion for Summary Adjudication is DENIED as moot. If any party wishes to contest the tentative ruling, no later than 4:00 PM two (2) court days prior to the hearing (exclude Saturday, Sunday and national holidays) contesting party must email dept.18@alame...

Excerpt: ... telephonic hearing please call 888- 214-9934. The password is Alameda2020. If not timely contested, and the tentative ruling will become the final order of the Court. Defendant Calaveras Natural Resources, Inc.'s ("Defendant") Motion for Summary Judgment is GRANTED. Defendant's Motion for Summary Adjudication is DENIED AS MOOT. TIMELINESS OF MOTION PAPERS Defendant objects to Plaintiffs Ricardo Ocampo ("Mr. Ocampo") and Elvia Ocampo's ("Mrs. Oca...

Excerpt: ...n interest to Square D Company ("Square D"), an electronics manufacturer, whom Plaintiffs allege is responsible for some asbestos- containing circuit breaker boxes around which plaintiff Ronald Wilgenbusch ("Mr. Wilgenbusch") worked during his 20+ year U.S. naval career. LEGAL STANDARDS FOR MOTIONS FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION "A party may move for summary judgment in an action or proceeding if it is contended that the action has...

Excerpt: ... the court finds that the party does not have a substantial interest in the case as a whole." (CCP § 36(b).) "A civil action subject to subdivision (a) shall be given preference over a case subject to this subdivision." (Id.) On September 19, 2019, Plaintiffs brought this case against Defendants arising from the death of Decedent Daniel S. Dena as a result of mesothelioma. Decedent's daughter, Ariana Dena ("Ariana") is eleven years old. (Index o...

Excerpt: ... the court finds that the party does not have a substantial interest in the case as a whole." (CCP § 36(b).) "A civil action subject to subdivision (a) shall be given preference over a case subject to this subdivision." (Id.) On September 19, 2019, Plaintiffs brought this case against Defendants arising from the death of Decedent Daniel S. Dena as a result of mesothelioma. Decedent's daughter, Ariana Dena ("Ariana") is eleven years old. (Index o...

Excerpt: ...nterest to Allen-Bradley ("Allen-Bradley"), an electronics manufacturer, whom Plaintiffs allege is responsible for some asbestos- containing circuit breaker boxes around which plaintiff Ronald Wilgenbusch ("Mr. Wilgenbusch") worked during his 20+ year U.S. naval career. LEGAL STANDARDS FOR MOTIONS FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION "A party may move for summary judgment in an action or proceeding if it is contended that the action has ...

Excerpt: ...joint tortfeasor of Lorillard, where this Court has already conclusively adjudged in Berg v. Alta Bldg. Materials, RG 17-84928 (the "Prior Action,)" an asbestos torts action to which all of Plaintiffs, Defendant and Lorillard were parties, that Defendant is not a tortfeasor with respect to Plaintiffs or a joint tortfeasor with respect to Lorillard. ALLEGATIONS OF PLAINTIFFS' PRESENT COMPLAINT AND OTHER RELEVANT FACTS Plaintiff's Complaint in the ...

Excerpt: ...entiality is required by law, court records are presumed to be open." (Cal. Rules of Court, Rule 2.550(c).) "The court may order that a record be filed under seal only if it expressly finds facts that establish: (1) [t]here exists an overriding interest that overcomes the right of public access to the record; (2) [t]he overriding interest supports sealing the record; (3) [a] substantial probability exists that the overriding interest will be prej...

Excerpt: ... more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages . . . , or that one or more defendants either owed or did not owe a ...

Excerpt: ... substantial interest in the action as a whole[;] [and] (2) [t]he health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation." (CCP § 36(a).) Noably, "[t]he standard under subdivision (a), ..., includes no requirement of a doctor's declaration." (Fox v. Superior Court (2018) 21 Cal. App. 5th 529, 534.) "To the contrary, a motion under subdivision (a) may be supported by nothing more t...

Excerpt: ...Defendant Eaton is the successor in interest to Cutler-Hammer Inc. ("Cutler- Hammer"), an electronics manufacturer, whom Plaintiffs allege is responsible for some asbestos-containing circuit breaker boxes around which plaintiff Ronald Wilgenbusch ("Mr. Wilgenbusch") worked during his 20+ year U.S. naval career. LEGAL STANDARDS FOR MOTIONS FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION "A party may move for summary judgment in an action or proceedi...

Excerpt: ...campo") and Elvia Ocampo's ("Mrs. Ocampo") (collectively, "Plaintiffs") Opposition as untimely. Plaintiffs filed their Opposition to this Motion on March 3, 2020, ten calendar days before the hearing date. The Court's December 17, 2019 Trial Setting Order states that oppositions for Motions for Summary Judgment are due 10 days before the hearing. (Dec. 17, 2019 Trial Setting Order at p. 4 [see ¶ 16].) Thus, the Opposition is timely. Defendant's ...

Excerpt: ...r a total of $1,250.000. The settlement agreement states there will be attorneys' fees of up to $416,666.67 (33%), costs of up to $20,000, a service award of $10,000 for the class representative, and settlement administration costs of $20,000. After these expenses, the class would get $783,333.33. The average payout per class members would be $653. The settlement was mediated with the assistance of Jeffrey Ross. The court gives "considerable weig...

Excerpt: ...ion as a whole[;] [and] (2) [t]he health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation." (CCP § 36(a).) "In its discretion, the court may also grant a motion for preference that is accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond...

Excerpt: ...gs: (1) [t]he party has a substantial interest in the action as a whole[;] [and] (2) [t]he health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation." (CCP § 36(a).) Notably, "[t]he standard under subdivision (a), ..., includes no requirement of a doctor's declaration." (Fox v. Superior Court (2018) 21 Cal. App. 5th 529, 534.) "To the contrary, a motion under subdivision (a) may be s...

Excerpt: ...ntial interest in the action as a whole[;] [and] (2) [t]he health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation." (CCP § 36(a).) "An affidavit submitted in support of a motion for preference under subdivision (a) of Section 36 may be signed by the attorney for the party seeking preference based upon information and belief as to the medical diagnosis and prognosis of any party." ...

Excerpt: ... Defendant, namely Selbalith "Navy Magnesite," a product which manufacturer and licensor Selby-Battersby Company ("SBC") has admitted contained 2% to 3% asbestos in its dry form until at least 1969 and which substantially matches the description of large bags of "magnesite" applied and sanded by Defendant's agents in plaintiff's presence in late 1962 or early 1963 on the USS Gridley. Defendant's Motion for Summary Adjudication ("MSA") with respec...

Excerpt: ...ype of metal worker, between approximately the late 1950's and the late 1970's. Defendant targets the threshold exposure sub-element of the essential element of causation by attempting to show that "the plaintiff does not possess, and cannot reasonably obtain, needed evidence-as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing." (See Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th...

Excerpt: ..., that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages . . . , or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs." (CCP § 437c(f)(1).) "A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty." (Id.) "[T]he party moving f...

Excerpt: ...f it is contended that the action has no merit or that there is no defense to the action or proceeding." (CCP § 437c (a) (1).) "[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 850.) "That is because of the general principle that a party who seeks a court's action in...

Excerpt: ...adjudication with respect to which Plaintiff has failed to serve timely oppositions. Further, Plaintiff has not timely sought relief for a problem which Plaintiff's counsel was aware of since at least 11/27/2019. FACTUAL AND PROCEDURAL BACKGROUND A Trial date of 3/16/2020 was set in the present action on 5/22/2019. (See 5/22/2020 Case Management Order.) On 7/1/2019, Plaintiff's counsel, who has considerable experience representing plaintiffs in a...