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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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...