On June 10, 2015 aMotion-Secondarywas filedinvolving a dispute betweenVincent J Costello And Margaret Costello,andAir & Liquid Systems Corporation, As Successor-By-Merger To Buffalo Pumps, Inc,Amchem Products, Inc., N K A Rhone Poulenc Ag Company, N K A Bayer Cropscience Inc,A.O. Smith Water Products Co.,,Atwood & Morrill Company,Aurora Pump Company,Avocet Enterprises, Inc. F K A Ventfabrics Inc,Blackmer,,Borg-Warner Corporation, By Its Successor-In-Interest, Borg-Warner Morse Tec, Inc,Bryant Heating & Cooling Systems,Burnham, Llc, Individually, And As Successor To Burnham Corporation,Bw Ip, Inc. And Its Wholly Owned Subsidiaries,Carrier Corporation,Cbs Corporation, F K A Viacom Inc., Successor By Merger To Cbs Corporation, F K A Westinghouse Electric Corporation,Certainteed Corporation,Cleaver Brooks Company, Inc,Crane Co.,,Dana Companies, Llc,,Duro Dyne Corporation,Fedders Corp,,Fmc Corporation, On Behalf Of Its Former Chicago Pump & Northern Pump Businesses,Fmc Corporation On Behalf Of Its Former Subsidiary, Crosby Valve, Inc.,,Fort Kent Holdings, Inc., Formerly Known As Dunham-Bush, Inc,Foster Wheeler, L.L.C,Gardner Denver, Inc.,,General Electric Company,George A. Fuller Company,,Georgia Pacific Llc,Goodyear Canada, Inc.,,Goulds Pumps, Inc.,,Honeywell International, Inc., F K A Allied Signal, Inc. Bendix,Imo Industries, Inc,Itt Industries, Inc., Individually, And As Successor To Bell & Gossett Company And As Successor To Kennedy Valve Manufacturing Co., Inc.,,,J.H. France Refractories Company,J-M Manufacturing Company, Inc.,,Johnson Control, Inc., Individually And As Successor In Interest To The Coleman Company, Inc., And Coleman Heating & Air Conditioning Company,Kaiser Gypsum Company, Inc.,,Karnak Corporation,Lennox Industries, Inc,Mannington Mills, Inc.,,Northrop-Grumann Corporation,Owens-Illinois, Inc.,,Peerless Industries, Inc,Pfizer, Inc.,Pneumo Abex Llc, Successor In Interest To Abex Corporation,Rheem Manufacturing Company,,Slant Fin Corporation,Taco, Inc.,,The Fairbanks Company,The Goodyear Tire And Rubber Company,Tishman Realty & Construction Co., Inc.,,Treadwell Corporation,Turner Construction Company,,Union Carbide Corporation,U.S. Rubber Company,Utica Boilers, Inc., Individually And As Successor To Utica Radiator Corporation,Warren Pumps, Llc,,Weil-Mclain, A Division Of The Marley-Wylain Company, A Wholly Owned Subsidiary Of The Marley Company, Llc,,York International Corporation,Zurn Industries Llc Individually And Successor To Erie City Iron Works A K A Erie City Boilers,for Asbestosin the District Court of New York County.
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FILED: NEW YORK COUNTY CLERK 09/19/2016 04:24 PM INDEX NO. 190182/2015 NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 09/19/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 50 In Re: New York City Asbestos Litigation Hon. Peter H. Moulton, J.S.C. ______________________________________ Index No. 190182/2015 VINCENT J. COSTELLO and MARGARET COSTELLO, April 2016 IE Cluster Plaintiffs, - against - A.O. SMITH WATER PRODUCTS CO., et al., Defendants. MEMORANDUM OF LAW IN SUPPORT OF LENNOX INDUSTRIES INC.’S MOTION FOR SUMMARY JUDGMENT Jennifer W. Darger, Esq. Brian T. Murnane, Esq. DARGER ERRANTE YAVIZ & BLAU LLP 116 East 27th Street at Park Avenue New York, NY 10016 212.452.5300 Counsel for Lennox Industries Inc. 1 of 12 TABLE OF CONTENTS Page PRELIMINARY STATEMENT................................................................................................. 1 SUMMARY OF RELEVANT TESTIMONY & UNDISPUTED FACTS ................................... 1 ARGUMENT ............................................................................................................................. 3 LENNOX IS ENTITLED TO SUMMARY JUDGMENT: PLAINTIFFS CANNOT PROVE THAT A LENNOX PRODUCT CAUSED THE ILLNESS ............................... 3 A.. The Summary Judgment Standard ................................................................................... 3 1. The Movant's Initial Burden ................................................................................ 3 2. Plaintiff’s Burden Opposing Summary Judgment ................................................ 4 B. Lennox Satisfied Its Burden; Plaintiffs Cannot Meet Their Burden ................................. 6 CONCLUSION .......................................................................................................................... 8 -i- 2 of 12 TABLE OF AUTHORITIES Cases Alvarez v. Prospect Hospital 68 N.Y.2d 320, 324 (1986) ....................................................................................................................... 4 Bevens v. Tarrant Manufacturing Co 48 A.D.3d 939 (3rd Dep’t 2008) ................................................................................................................ 5 Blake v. Gardino 35 A.D.2d 1022, 1023 (3d Dep’t 1970) .................................................................................................... 3 Brill v. City of New York 2 N.Y.3d 648, 781 N.Y.S.2d 261 (2004)................................................................................................... 3 Brown v. Elm Plumbing Supply 271 A.D.2d 469, 706 N.Y.S.2d 909 (2d Dep’t 2000) ................................................................................ 4 Cawein v. Flintkote Co. 203 A.D.2d 105, 106, 610 N.Y.S.2d 487 (1st Dep’t 1994) .....................................................................4, 5 Christiana v. Benedictine Hospital 248 A.D.2d 910, 912 (3d Dep’t 1998). ..................................................................................................... 4 Cornell v. 360 W. 51st St. Realty, LLC 22 N.Y.3d 762, 784 (2014) ....................................................................................................................... 5 D’Amico v. Mfrs. Hanover Trust Co. 173 A.D.2d 263, 569 N.Y.S.2d 962 (1st Dep’t 1991) ................................................................................ 4 Diel v. Flintkote Co. 204 A.D.2d 53, 54, 611 N.Y.S.2d 519, 521............................................................................................3, 6 Empire Square Realty Co. v. Chase National Bank of City of New York 181 Misc. 752, 755, 43 N.Y.S.2d 470, 473 (1943) .................................................................................... 4 Friends of Animals, Inc. v. Associated Fur Mfrs 46 N.Y. 2d 1065 (1979)............................................................................................................................ 4 Gervasio v. Di Napoli 134 A.D. 2d 235 (2nd Dep’t 1987) ........................................................................................................... 6 Healey v. Firestone Tire & Rubber Co. 87 N.Y.2d 596, 601-02, 640 N.Y.S.2d 860 (1996) .................................................................................5, 7 Higgins v. Pope 37 A.D.3d 1086 (4th Dep’t 2007) .............................................................................................................. 3 - ii - 3 of 12 Kramer v. Harris 9 A.D.2d 282, 283, 193 N.Y.S.2d 548 (1st Dep’t 1959) ............................................................................ 6 Loughlin v. City of New York 186 A.D.2d 176 (2d Dep’t 1992) ...........................................................................................................2, 6 Monaco v. Camie-Campbell, 256 A.D.2d 1214, 682 N.Y.S.2d 510 (4th Dep’t 1998) .................................... 4 Parker v. Mobile 7 N.Y.3d 434, 448, 824 N.Y.S.2d 584 (N.Y. 2006)................................................................................... 5 Perdicaro v. A.O. Smith Water Products 52 A.D.3d 300, 301, 860 N.Y.S.2d 506, 507 (1st Dep’t 2008) ...............................................................4, 5 Reid v. Georgia-Pacific Corp. 212 A.D.2d 462, 622 N.Y.S.2d 946 (1st Dep’t 1995) .............................................................................3, 4 S.J. Capelin Assoc. v. Globe Mfg. Corp. 34 N.Y.2d 338, 341, 357 N.Y.S.2d 478, 313 N.E.2d 776 (1974) ............................................................2, 6 Scheidel v. A.C.&S., Inc. 258 A.D.2d 751, 754 (3rd Dep’t. 1999) ..................................................................................................... 6 Sean R. v. BMW Of North America 26 N.Y.3d 801, at [1], [2] (2016) .............................................................................................................. 5 Sosa v. Joyce Beverages, Inc. 159 A.D.2d 335, 552 N.Y.S.2d 612 (1st Dep’t 1990) ................................................................................ 5 Vega v. Restain Constr. Corp. 18 N.Y.3d 499 (2012) .............................................................................................................................. 3 Winegrad v. New York Univ. Med. Ctr. 64 N.Y.2d 851, 52 (1985)......................................................................................................................3, 4 Zuckerman v. City of N.Y. 49 N.Y.2d 557, 559, 562, 427 N.Y.S.2d 595 (1980) ..............................................................................3, 4 Rules CPLR 3212(b) ............................................................................................................................................. 3 - iii - 4 of 12 PRELIMINARY STATEMENT Defendant Lennox Industries Inc. (“Lennox”) submits this Memorandum of Law in support of its Motion for Summary Judgment, along with the affirmation of Brian T. Murnane, Esq. dated September 19, 2016 (“Murnane Aff”), the exhibits attached thereto, and the affidavit of Lennox employee William F. Drake, sworn to September 14, 2016 (“Drake Aff”) (attached to the Murnane Aff at Exhibit 18). SUMMARY OF RELEVANT TESTIMOY & UNDISPUTED FACTS The Murnane Aff sets forth the testimony of plaintiff Vincent Costello relevant to this motion, along with the indisputable facts relating to the Lennox equipment at issue. In summary, Mr. Costello claims that from approximately 1976 to 1976, he worked in the heating & cooling field. He claims he did various types of work, including installing and maintaining various brands of rooftop air conditioning units, including Lennox. As to this equipment, he believes he was exposed to asbestos from interior insulation, and sealing strips on access doors. If Mr. Costello worked with Lennox air conditioning equipment, he could not have been exposed to asbestos in the manner he described. The insulation Mr. Costello described as contained in Lennox air conditioning units never contained asbestos nor did the sealing strips. Murnane Aff, ¶¶ 8, 9; Drake Aff, ¶¶ 12, 13. Through the first six days of his seven-day discovery deposition, Mr. Costello mentioned (as to Lennox) only air conditioning units. On Day 5 of the deposition, counsel for Lennox thoroughly examined Mr. Costello, during which he mentioned only Lennox air conditioning units. Murnane Aff, Ex. 5 at 1155:6 – 1170:13. At the conclusion of this examination, counsel asked Mr. Costello if he had discussed all the ways he believes he was exposed to asbestos from Lennox equipment, and Mr. Costello said yes: “Q. Have we now discussed all the ways in which you believe you were 5 of 12 exposed to asbestos from Lennox equipment? A. As far as I can remember.” Murnane Aff, Ex. 5 at 1170:7 – 13. On the seventh and final day of his deposition, during examination by his attorney, Mr. Costello contradicted this testimony and said, for the first time, that the roof top air conditioning units he had spent six days testifying about, under oath, were really combination/HVAC units that provided both cooling and heated air. This blatantly coached, self-contradictory testimony should be rejected and given no weight for purposes of this motion. See S.J. Capelin Assoc. v. Globe Mfg. Corp., 34 N.Y.2d 338, 341, 357 N.Y.S.2d 478, 313 N.E.2d 776 (1974); Loughlin v. City of New York, 186 A.D.2d 176 (2d Dep’t 1992). It is not equivocal testimony; it is outright contradictory. Assuming, for the sake of argument, that it is proper to consider self-contradictory testimony for purposes of this motion, Lennox is still entitled to summary judgment. As with its roof top air conditioning units, the internal insulation in Lennox combination/HVAC units for commercial applications (and any sealing strips on access doors) did not contain asbestos. Murnane Aff, ¶¶ 11, 12. On plaintiff’s counsel’s direct, Mr. Costello also added, for the first time, that he worked with some Lennox “split system” air conditioning equipment at private homes. Again, such contradictory testimony should be rejected, but if the Court considers it, the result again is the same. Assuming, for the sake of argument, that Mr. Costello worked with Lennox “split system” air conditioning equipment, he could not have been exposed to asbestos from this equipment in the manner he described. Murnane Aff, ¶¶ 12, 13. -2- 6 of 12 ARGUMENT LENNOX IS ENTITLED TO SUMMARY JUDGMENT: PLAINTIFF CANNOT PROVE THAT A LENNOX PRODUCT CAUSED HIS ILLNESS A. The Summary Judgment Standard 1. The Movant’s Initial Burden CPLR 3212(b) states that a motion for summary judgment: shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party. Except as provided in subdivision (c) of this rule the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact. Lennox is entitled to summary judgment if it can establish there is no genuine, triable issue as to any material fact relevant to the claims against it, such that it is entitled to judgment as a matter of law. CPLR 3212(b); Vega v. Restain Constr. Corp., 18 N.Y.3d 499 (2012); Brill v. City of New York, 2 N.Y.3d 648, 781 N.Y.S.2d 261 (2004); Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 52 (1985) (“the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case”); Zuckerman v. City of N.Y., 49 N.Y.2d 557, 559, 562, 427 N.Y.S.2d 595 (1980); Diel v. Flintkote Co., 204 A.D.2d 53, 54, 611 N.Y.S.2d 519, 521 (1st Dept. 1994) (defendant met its initial summary judgment burden by submitting admissible evidence demonstrating that the complaint had no merit); Higgins v. Pope, 37 A.D.3d 1086 (4th Dep’t 2007) (defendant entitled to summary judgment if it can establish the merits of a defense); Blake v. Gardino, 35 A.D.2d 1022, 1023 (3d Dep’t 1970) (summary judgment should be granted “without hesitation in negligence actions where there is no merit to the cause of action”). 1 1 Citing principally Reid v. Georgia-Pacific Corp., 212 A.D.2d 462, 622 N.Y.S.2d 946 (1st Dep’t 1995), this Court has previously stated that defendants in asbestos case seeking summary judgment must first establish -3- 7 of 12 2. Plaintiff’s Burden Opposing Summary Judgment Movant’s initial burden having been met, the party opposing summary judgment must present admissible evidence demonstrating the presence of genuine issues of fact. A plaintiff opposing summary judgment must demonstrate that he can adduce sufficient, admissible evidence to prove his case: We have repeatedly held that one opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim….” Zuckerman, 49 N.Y.2d at 559; Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 (1986). 2 In a products liability action, plaintiff must demonstrate that he can prove his case against each defendant. He cannot avoid summary judgment with product identification evidence that is speculative, conjectural, or equally balanced between multiple defendants. Healey v. Firestone Tire that their product could not have caused plaintiff’s illness. Respectfully, this heightened burden is nowhere to be found in CPLR 3212 or any decision of the Court of Appeals, and it was not the First Department’s holding in Reid. The Court’s statement in Reid that defendant would not have been entitled to summary judgment anyway because it failed to establish that its product could not have caused plaintiff's injury was dicta that relied on Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 (1985), a medical malpractice case. In Winegrad, however, the Court of Appeals never said a party seeking summary judgment in a toxic exposure case must first establish that its product could not have caused the alleged injury. Citing Zuckerman and other decisions, the Court stated that, “the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case . . . . 64 N.Y.2d at 852. Clearly, the First Department in Reid was not attempting to overrule New York law as established by the CPLR and Court of Appeals precedent. Even if was, it cannot make new law in dicta. See Empire Square Realty Co. v. Chase National Bank of City of New York, 181 Misc. 752, 755, 43 N.Y.S.2d 470, 473 (1943) (when an appellate court in New York creates new law, it should do so in a clear, unambiguous manner). It is worth noting that in Cawein v. Flintkote Co., 203 A.D.2d 105, 106, 610 N.Y.S.2d 487 (1st Dep’t 1994), decided just months before Reid, and Perdicaro v. A.O. Smith Water Products, 52 A.D.3d 300, 301, 860 N.Y.S.2d 506, 507 (1st Dep’t 2008), the First Department did not follow or endorse the Reid Court’s dicta relating to the defendant not being able to establish non-exposure to its products. In both cases, exposure to asbestos from defendants/movants’ products was possible, but the First Department ruled they were entitled to summary judgment because plaintiffs could not prove actual exposures from those products. In neither decision did the First Department say that, in asbestos cases, defendants seeking summary judgment must first prove that their products could not possibly have caused the alleged injury. 2 See also Friends of Animals, Inc. v. Associated Fur Mfrs, 46 N.Y. 2d 1065 (1979); D’Amico v. Mfrs. Hanover Trust Co., 173 A.D.2d 263, 569 N.Y.S.2d 962 (1st Dep’t 1991); Monaco v. Camie-Campbell 256 A.D.2d 1214, 682 N.Y.S.2d 510 (4th Dep’t 1998), appeal denied, 93 N.Y.S.2d 887 (N.Y. 1999); Brown v. Elm Plumbing Supply., 271 A.D.2d 469, 706 N.Y.S.2d 909 (2d Dep’t 2000); Christiana v. Benedictine Hospital, 248 A.D.2d 910, 912 (3d Dep’t 1998). -4- 8 of 12 & Rubber Co., 87 N.Y.2d 596, 601-02, 640 N.Y.S.2d 860 (1996); Bevens v. Tarrant Manufacturing Co, 48 A.D.3d 939 (3rd Dep’t 2008). 3 In an asbestos case, as a threshold matter, plaintiff must demonstrate that he can prove that it is reasonably probable that he inhaled asbestos fibers from defendant’s product. Cawein v. Flintkote Co., 203 A.D.2d 105, 106, 610 N.Y.S.2d 487 (1st Dep’t 1994) (summary judgment for defendant where plaintiff could not present proof that raised “a reasonable inference that [decedent] inhaled asbestos fibers from” defendant’s product. “Without some showing on this threshold question, there can be no possible finding of proximate cause . . . .”). See also Sean R. v. BMW Of North America, 26 N.Y.3d 801, at [1], [2] (2016) (“at a minimum ... there must be evidence from which the factfinder can conclude that the plaintiff was exposed to levels of th[e] agent that are known to cause the kind of harm that the plaintiff claims to have suffered” (citation omitted); Cornell v. 360 W. 51st St. Realty, LLC, 22 N.Y.3d 762, 784 (2014); Parker v. Mobile, 7 N.Y.3d 434, 448, 824 N.Y.S.2d 584 (N.Y. 2006). 4 If plaintiff claims exposure to asbestos from a product during a period in which the product did not always contain asbestos, or he claims exposure to comparable products, some of which did not contain asbestos, plaintiff must prove that he worked with or near the product that contained asbestos, during the time period it contained asbestos. 5 3 See also Sosa v. Joyce Beverages, Inc., 159 A.D.2d 335, 552 N.Y.S.2d 612 (1st Dep’t 1990) (party cannot defeat summary judgment with “surmise, conjecture or suspicion, nor bald conclusory allegations”). 4 In Parker, Cornell and Sean R., the New York Court of Appeals has clarified that to prove causation in a toxic tort action, plaintiff must prove: (i) exposure to the toxin; (ii) the toxin is capable of causing the particular illness (general causation); and (iii) plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation). 5 See Perdicaro v. A.O. Smith Water Products, 52 A.D.3d 300, 301, 860 N.Y.S.2d 506, 507 (1st Dep’t 2008). In Perdicaro, the First Department reversed the trial court’s denial of defendant’s motion for summary judgment in an asbestos case. Defendant had established that it used both asbestos and non-asbestos thermal insulation in the power plant where plaintiff worked. The Court ruled that defendant was entitled to summary judgment since plaintiff could not prove that he was exposed to the asbestos-containing insulation. In doing so, the Court did not say that defendant had to first prove, unequivocally, that plaintiff could not have been exposed to the asbestos insulation. Plaintiff’s exposure to the asbestos insulation was possible, but whether that happened was, as the Court stated, speculation. As the Court noted, plaintiff “admittedly lacked training in insulating work, and offered no factual support that would reasonably suggest that the insulation he saw in use at the time he was purportedly present at the Con Ed powerhouses -5- 9 of 12 Plaintiff must also establish that, more likely than not, this exposure to asbestos from defendant’s product was a substantial factor in causing his injury. Id.; Diel, 204 A.D.2d at 54, 611 N.Y.S.2d at 521; Scheidel v. A.C.&S., Inc., 258 A.D.2d 751, 754 (3rd Dep’t. 1999). To successfully oppose summary judgment, plaintiff must demonstrate the existence of genuine issues of fact. Testimony that is impossible or incredible does not raise genuine, triable issues of fact. S.J. Capelin Assoc. v. Globe Mfg. Corp., 34 N.Y.2d 338, 341, 357 N.Y.S.2d 478, 313 N.E.2d 776 (1974); Kramer v. Harris, 9 A.D.2d 282, 283, 193 N.Y.S.2d 548 (1st Dep’t 1959) (party cannot avoid summary judgment with “tenuous effort at issue creation implemented by incredible conclusory facts and gross assertions”). Issues that are feigned or fabricated are not genuine. Gervasio v. Di Napoli, 134 A.D. 2d 235 (2nd Dep’t 1987) (court's function on summary judgment motion is issue finding rather than issue determination, but court must evaluate whether alleged factual issues presented are genuine or unsubstantiated; feigned issues are not genuine) (emphasis added). In evaluating whether the opposing party has raised a genuine issue of fact, Courts must use common sense and disregard testimony that is farfetched or self-contradictory. Loughlin v. City of New York, 186 A.D.2d 176 (2d Dep’t 1992) (generally, the trier of fact resolves issues of credibility, but in evaluating testimony courts must not discard their common sense and common knowledge; testimony that is incredible, unbelievable, or impossible of belief because it is manifestly untrue, physically impossible, contrary to experience, or self-contradictory, shall be disregarded as being without evidentiary value, even though it is not contradicted by other testimony or evidence). B. Lennox Satisfied Its Burden, Shifting the Burden to Plaintiffs As discussed above and in the Murnane Aff, Lennox has satisfied its initial burden, demonstrating with documents and irrefutable testimony from a person with personal knowledge of was asbestos-based.” 52 A.D.3d at 301. See also Diel v. Flintkote Co., 204 A.D.2d 53, 54, 611 N.Y.S.2d 519, 521 (1st Dept. 1994) (mere presence of defendant’s product at plaintiff’s job site insufficient to prove causation -6- 10 of 12 the Lennox equipment at issue that Mr. Costello could not have been exposed to asbestos from the Lennox equipment he described in the manner he described. In light of this irrefutable evidence, Lennox has made an initial prima facie showing that it is entitled to judgment as a matter of law. Plaintiffs must now demonstrate to the Court that they can adduce sufficient evidence to prove their claims against Lennox. They must now show that there is a bona fide issue, requiring trial, whether Mr. Costello was exposed to respirable asbestos fibers from the Lennox equipment at issue. Plaintiffs cannot meet their summary judgment burden. The components in the Lennox equipment Mr. Costello described, which he speculated contained asbestos, in fact never contained asbestos. Plaintiffs cannot avoid summary judgment with such speculative testimony, Healey, 87 N.Y.2d at 601-02, and they can present no documents that establish that the components of the Lennox equipment Mr. Costello claims he encountered contained asbestos. -7- 11 of 12 CONCLUSION For the foregoing reasons, Lennox respectfully requests that this Court grant summary judgment in its favor, dismissing all claims and cross-claims against Lennox in this action. Dated: New York, New York September 19, 2016 DARGER ERRANTE YAVITZ & BLAU LLP /s/ Brian T. Murnane Jennifer W. Darger, Esq. Brian T. Murnane, Esq. 116 East 27th Street at Park Avenue New York, NY 10016 212.452.5300 bmurnane@deybllp.com Counsel for Lennox Industries Inc. -8- 12 of 12
Case Info
Judge
Manuel J. MendezTrack Judge’s New Case
Case No.
(Subscribe to View)
Document Filed Date
September 19, 2016
Case Filing Date
June 10, 2015
County
Category
Asbestos
Status
Active
Parties
AIR & LIQUID SYSTEMS CORPORATION, as successor-by-merger to BUFFALO PUMPS, INCDefendant
ALZADON MOOR, RULA DAttorney for the Defendants
AMCHEM PRODUCTS, INC., n/k/a RHONE POULENC AG COMPANY, n/k/a BAYER CROPSCIENCE INCDefendant
A.O. SMITH WATER PRODUCTS CO.,Defendant
ATWOOD & MORRILL COMPANYDefendant
AURORA PUMP COMPANYDefendant
AVOCET ENTERPRISES, INC. f/k/a VENTFABRICS INCDefendant
BAIN, ANDREW FOSTERAttorney for the Defendants
BAKER, HEIDI C.Attorney for the Defendants
BELTZ, JORDAN DAVIDAttorney for the Defendants
BLACKMER,Defendant
BORG-WARNER CORPORATION, by its successor-in-interest, BORG-WARNER MORSE TEC, INCDefendant
BRYANT HEATING & COOLING SYSTEMSDefendant
BURNHAM, LLC, Individually, and as successor to BURNHAM CORPORATIONDefendant
BW/IP, INC. AND ITS WHOLLY OWNED SUBSIDIARIESDefendant
CALCAGNO, TERANCE ROWEAttorney for the Defendants
Cantamessa, Alexandra ElizabethAttorney for the Defendants
CARNI, URIEL SHMAYAAttorney for the Defendants
CARRIER CORPORATIONDefendant
CBS CORPORATION, f/k/a VIACOM INC., successor by merger to CBS CORPORATION, f/k/a WESTINGHOUSE ELECTRIC CORPORATIONDefendant
CERTAINTEED CORPORATIONDefendant
CHAMRA, CASEY THOMASAttorney for the Defendants
CLEAVER BROOKS COMPANY, INCDefendant
COOK, KERRYANN MARIEAttorney for the Defendants
CRANE CO.,Defendant
DANA COMPANIES, LLC,Defendant
See AlsoBest documentaries streaming now on Prime VideoSUMMONS + COMPLAINT October 20, 2016AFFIDAVIT OR AFFIRMATION IN OPPOSITION TO MOTION (Motion #002) - Affirmation in Opp to Lennox Industries' Motion for Summary Judgment October 27, 2016Journal articles: 'Yale University. Dept. of Drama' – GrafiatiDEAN, ANDREW WAYNEAttorney for the Defendants
DILONARDO, ANNA M.Attorney for the Defendants
DURO DYNE CORPORATIONDefendant
EDWARDS, JAMESAttorney for the Defendants
FEDDERS CORP,Defendant
FMC CORPORATION, on behalf of its former CHICAGO PUMP & NORTHERN PUMP BUSINESSESDefendant
FMC CORPORATION on behalf of its former subsidiary, CROSBY VALVE, INC.,Defendant
FORT KENT HOLDINGS, INC., FORMERLY KNOWN AS DUNHAM-BUSH, INCDefendant
FOSTER WHEELER, L.L.CDefendant
GAGLIARDI, DANIEL JOHNAttorney for the Defendants
GARDNER DENVER, INC.,Defendant
GASIOR, JOAN M.Attorney for the Defendants
GENERAL ELECTRIC COMPANYDefendant
GEORGE A. FULLER COMPANY,Defendant
GEORGIA PACIFIC LLCDefendant
GILBERT, ELISA TARAAttorney for the Defendants
GLEBER, ERICH JAttorney for the Defendants
GOODEARL, DAVID JAMESAttorney for the Defendants
GOODYEAR CANADA, INC.,Defendant
GORMAN, MICHAEL FRANCISAttorney for the Defendants
GOULDS PUMPS, INC.,Defendant
GRADY, MICHELLE DENISEAttorney for the Defendants
HALBARDIER, SUZANNE MAttorney for the Defendants
HANNAN, CHRISTOPHER PATRICKAttorney for the Defendants
HERSH, RYAN DAVIDAttorney for the Defendants
HOLLMAN, LAURA B.Attorney for the Defendants
HONEYWELL INTERNATIONAL, INC., f/k/a ALLIED SIGNAL, INC. / BENDIXDefendant
HOWARTH, JOHN SAMUELAttorney for the Defendants
HUGHES, BETH LYNNAttorney for the Defendants
IMO INDUSTRIES, INCDefendant
ITT INDUSTRIES, INC., Individually, and as successor to BELL & GOSSETT COMPANY and as successor to KENNEDY VALVE MANUFACTURING Co., Inc.,,Defendant
J.H. FRANCE REFRACTORIES COMPANYDefendant
J-M MANUFACTURING COMPANY, INC.,Defendant
JOHNSON CONTROL, INC., INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO THE COLEMAN COMPANY, INC., AND COLEMAN HEATING & AIR CONDITIONING COMPANYDefendant
KAISER GYPSUM COMPANY, INC.,Defendant
KARNAK CORPORATIONDefendant
KATES, ANDREW PHILIPAttorney for the Defendants
LENNOX INDUSTRIES, INCDefendant
MANNINGTON MILLS, INC.,Defendant
MARKOWITZ, NICOLE GERBERAttorney for the Defendants
MCGOWAN, HELEN ANTONIOUAttorney for the Defendants
MURNANE, BRIAN TAttorney for the Defendants
MUSE, ERIKA LORIAttorney for the Defendants
NICOLETI & HARRISNon Party
NORTHROP-GRUMANN CORPORATIONDefendant
O'ROURKE, PHILIP JAttorney for the Defendants
OWENS-ILLINOIS, INC.,Defendant
PASCARELLA, LISA M.Attorney for the Defendants
PEERLESS INDUSTRIES, INCDefendant
PFIZER, INC. (PFIZER),Defendant
PNEUMO ABEX LLC, successor in interest to ABEX CORPORATION (ABEX),Defendant
POPE, MICHELLE ANETTEAttorney for the Defendants
POSAVETZ, MICHAEL ANTHONYAttorney for the Defendants
POWERS, NATALIE ANNAttorney for the Defendants
PUGLIESE, DONALD RAttorney for the Defendants
Regev, ElissaAttorney for the Defendants
REGINA, GIOVANNIAttorney for the Defendants
RHEEM MANUFACTURING COMPANY,Defendant
RIEMER, JASON S.Attorney for the Defendants
SARGENTE, ALFRED JOSEPHAttorney for the Defendants
SHULTZ, WILLIAM D.Attorney for the Defendants
SLANT/FIN CORPORATIONDefendant
SPENCE, NICOLE ANN-MARIEAttorney for the Defendants
SQUITIERI, VIRGINIA PAULAAttorney for the Defendants
ST. GEORGE, CARMEN VICTORIAAttorney for the Plaintiff
TACO, INC.,Defendant
TALWAR, GAURAV KAttorney for the Defendants
TAMASCO, MATTHEW SCOTTAttorney for the Defendants
TANENBAUM, MICHAEL AAttorney for the Defendants
THE FAIRBANKS COMPANYDefendant
THE GOODYEAR TIRE AND RUBBER COMPANYDefendant
TISHMAN REALTY & CONSTRUCTION CO., INC.,Defendant
TREADWELL CORPORATIONDefendant
TURBERT, KEVIN WILLIAMAttorney for the Defendants
TURNER CONSTRUCTION COMPANY,Defendant
UNION CARBIDE CORPORATIONDefendant
U.S. RUBBER COMPANY (UNIROYAL),Defendant
UTICA BOILERS, INC., Individually and as successor to UTICA RADIATOR CORPORATIONDefendant
Vincent J Costello and MARGARET COSTELLOPlaintiff
WARREN PUMPS, LLC,Defendant
WEIL-MCLAIN, a division of The Marley-Wylain Company, a wholly owned subsidiary of The Marley Company, LLC,Defendant
WINKLER, AUBREE NICOLEAttorney for the Defendants
YAVITZ, JUDITH AAttorney for the Defendants
YORK INTERNATIONAL CORPORATIONDefendant
ZURN INDUSTRIES LLC Individually and Successor to ERIE CITY IRON WORKS a/k/a ERIE CITY BOILERSDefendant
KATRINA MURPHYAttorneys for Defendants
WILLIAM JUNKERMANAttorneys for Defendants
JAMES THOMASAttorneys for Plaintiffs
WILLIAM DOWNESAttorney
Jennifer DargerAttorneys for Defendants
ALYSA KOLOMSAttorney
MARIA CICCIAAttorneys for Defendants
ERIN MITERAttorneys for Defendants
ALEXANDRA ORBEZOAttorneys for Defendants
PETER LANEAttorneys for Defendants
CHRIS ROMANELLIAttorneys for Plaintiffs
IRVING COOPERAttorneys for Defendants
JESSICA BEAUVAISAttorneys for Defendants
EDWARD WILBRAHAMAttorney
PETER LANGENUSAttorney
RICHARD LEFFAttorney
ADAM DREKSLERAttorneys for Plaintiffs
CHARLES FERGUSONAttorney
DENNIS VEGAAttorneys for Defendants
JOSEPH LASALAAttorney
THEODORE EDERAttorney
JULIE EVANSAttorney
EVA WAYNEAttorney
STEPHEN ROSENBAUMAttorney
CHRISTIAN GANNONAttorneys for Plaintiffs
JOHN BURBRIDGEAttorneys for Defendants
JOHN FANNINGAttorneys for Defendants
ROBERT MALABYAttorneys for Defendants
PAUL SCRUDATOAttorneys for Defendants
NORMAN GOLUBAttorneys for Defendants
CARMEN SUARDYAttorneys for Defendants
JOSEPH CARLISLEAttorneys for Defendants
MARYELLEN CONNORAttorneys for Defendants
MATTHEW ENDLICHAttorney
JOSEPH DIGREGORIOAttorney
ERIC COTTLEAttorney
RAGHU BANDLAMUDIAttorney
SCOTT EDWARDSAttorney
JILL BERRYAttorney
ELANA DANZERAttorney
WILLIAM COONEYAttorney
LINDSEY FOSTERAttorney
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SMITH, ET AL VS. PG&E CORPORATION, ET ALCase Number: CVPO20-0196313This matter is on calendar for review regarding status of coordinated proceeding. This matter iscurrently coordinated as JCCP No. 5165 in the San Francisco County Superior Court. No statusstatement has been filed since the most recent review date of January 29, 2024. An appearanceis necessary on today’s calendar to provide a status of the coordinated proceeding.
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Stephen Siefke vs Jimmy Dutra, Jr
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22CV02174SIEFKE v. DUTRA DEFENDANT DUTRA’S MOTION TO COMPEL PLAINTIFF’S FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET THREE; FORM INTERROGATORIES, SET ONE; AND SPECIAL INTERROGATORIES, SET FOUR This case involves allegations of child sexual abuse by defendant. According to thecomplaint, in the summer of 2005, plaintiff, then 12 years old, vacationed with defendant, then30 years old, and his parents, in Southern California. It was during this trip that plaintiff allegeshe was molested by defendant. Trial is set to begin on September 3, 2024. These motions were set on shortened time. The motion is granted in part and denied in part, as discussed in detail below. Defendant seeks to compel further responses to request for production of documents, setthree; special interrogatories, set four; and form interrogatories, set one. Request for production, set three
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JONATHAN M JIMENEZ VS AMF BEVERLY LANES, ET AL.
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Case Number: 21STCV31760 Hearing Date: July 29, 2024 Dept: 29 Motion for Terminating Sanctions filed by Defendant AMF Bowling Centers, Inc. Tentative The motion is denied without prejudice. Background On August 27, 2021, Plaintiff Jonathan M. Jimenez (Plaintiff), representing himself in pro per, filed a complaint against Defendants AMF Beverly Lanes, Bowlero Corporation, AMF Bowling Centers, Inc. and Does 1 through 10, asserting causes of action for negligence and premises liability arising out of a physical altercation occurring on August 30, 2019, at a bowling alley on West Beverly Boulevard in Montebello. On October 22, 2021, Defendant AMF Bowling Centers, Inc. (erroneously sued as AMF Beverly Lanes and Bowlero Corporation) (Defendant) filed an answer to the complaint. On April 23, 2024, the Court granted Defendants motion to compel and ordered Plaintiff to respond to Defendants Special Interrogatories (Set Two), Supplemental Interrogatories (Set One), and Supplemental Requests for Production (Set One). Plaintiff did not comply or respond to follow up communications from Defendants counsel. (Buckner Decl., ¶¶ 3-5.) On June 10, 2024, Defendant filed a motion to dismiss the case as a terminating sanction. No opposition has been filed. Legal Standard When a plaintiff fails to obey an order compelling answers to interrogatories, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to, that sanction, the court may impose a monetary sanction under Chapter 7. (Code Civ. Proc., § 2030.290, subd. (c).) When a plaintiff fails to obey an order compelling responses to requests for production, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to, that sanction, the court may impose a monetary sanction under Chapter 7. (Code Civ. Proc., § 2031.300, subd. (c).) In Chapter 7 of the Civil Discovery Act, section 2023.030 provides for monetary, evidence, issue, and terminating sanctions for any misuse of the discovery process, [t]o the extent authorized by the chapter governing any particular discovery method or any other provision of this title. A misuse of the discovery process is defined to include (among other things) failing to respond or to submit to an authorized method of discovery; making, without substantial justification, an unmeritorious objection to discovery; making an evasive response to a discovery request; disobeying a court order to provide discovery; and making or opposing, unsuccessfully, a motion to compel without substantial justification. (Code Civ. Proc., § 2023.010, subds. (d)-(h).) The Civil Discovery Act provides for an escalating and incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604.) Discovery sanctions should be appropriate to and commensurate with the misconduct, and they should not exceed that which is required to protect the interests of the party entitled to but denied discovery. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.) If a lesser sanction fails to curb misuse, a greater sanction is warranted: continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse. (Ibid.; see also, e.g., Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280.) Terminating sanctions should be used sparingly. (Doppes, supra, 174 Cal.App.4th at p. 992; R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal. App. 4th 486, 496.) Although in extreme cases a court has the authority to order a terminating sanction as a first measure, a terminating sanction should generally not be imposed until the court has attempted less severe alternatives and found them to be unsuccessful and/or the record clearly shows lesser sanctions would be ineffective. (Lopez, supra, 246 Cal.App.4th at p. 604.) But where discovery violations are willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction. (Doppes, supra, 174 Cal.App.4th at p. 992.) Repeated and willful violations of discovery orders that prejudice the opposing party may warrant a terminating sanction. (Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 702; Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390; Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327; Lang v. Hachman (2000) 77 Cal.App.4th 1225, 1246; Collisson X Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1617-1622.) The primary purpose of discovery sanctions is to obtain compliance with the Civil Discovery Act and the Courts orders. It is not to punish. (Newland v. Super. Ct. (1995) 40 Cal.App.4th 608, 613; Ghanooni v. Super Shuttle of Los Angeles (1993) 20 Cal.App.4th 256, 262.) A discovery sanction should not create a windfall for a party or place a party in a better position than it would have been if the opposing party had simply complied with its obligations under the Courts orders and the Civil Discovery Act. (Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164, 1194; see also 2 Weil & Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group 2023), ¶¶ 8:2214-2220.) It is never justified for a court to impose a terminating sanction solely because of a failure to pay a monetary discovery sanction. (Newland, supra, 40 Cal.App.4th at p. 615.) Discussion Defendant seeks terminating sanctions for Plaintiffs violation of a court order requiring Plaintiff to provide responses to interrogatories and requests for production. Defendant served in pro per Plaintiff electronically (per the proof of service). Although electronic service may be mandatory for represented parties, litigants who are in pro per are not subject to mandatory email service, and Defendant has presented no evidence that Plaintiff has consented to email service. (See Code Civ. Proc., § 1010.6, subd. (c)(2); Cal. Rules of Court, rule 2.251(c)(3)(B).) Notice of this motion was not properly served on Plaintiff. Accordingly, the Defendants motion for terminating sanctions is DENIED without prejudice. The Court also notes, but does not decide, that the notice of ruling on the motion to compel was given electronically (and therefore may not be adequate). The Court also observes, but does not decide. that the violation of one court order, although a serious matter that commonly merits sanctions, may not be a sufficient basis for a terminating sanction. Conclusion The Court DENIES Defendants motion for terminating sanctions without prejudice for failure to provide adequate proof of service on the pro per Plaintiff. 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Stutesman vs. Vang
Jul 30, 2024 |24CV-0204805
STUTESMAN VS. VANGCase Number: 24CV-0204805Tentative Ruling on Motion to Strike: Defendant Emmanual Vang moves to strike portions of Plaintiff KelceyStutesman’s Complaint filed on April 17, 2024. Plaintiff opposes the motion.Meet and Confer Requirements. Before filing a motion to strike a party is required to meet and confer in personor on the telephone. CCP § 435.5(a). A motion to strike shall be supported by a declaration stating either thatthe parties met and conferred or that they were unable to meet and confer. CCP § 435.5(a)(3). The Declarationof Timothy I. Mulcahey provides evidence of sufficient efforts to meet and confer.Motion to Strike Standard. A motion to strike can be used to attack the entire pleading, or any part thereof,including single words or phrases. Stearns Ranchos v. Atchison Topeka & Santa Fe Railway (1981) 19 Cal. App.3d 24. It is proper for the Court to strike any irrelevant, false or improper matter. CCP § 436(a). The Court canalso strike any part of a pleading that is not drawn or filed in conformity with California law. CCP § 436(b).Merits. Defendant moves to strike “punitive damages” from ¶ 14(a)(2) of the Complaint and the entirety of theExemplary Damages Attachment. Recovery of punitive damages is codified in Civ. Code § 3294 which reads, inpart: (a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant. … (c) As used in this section, the following definitions shall apply: (1) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.The facts asserted to support malice or oppression are included in the Exemplary Damages Attachment. The factsalleged include that Plaintiff was stopped at a red light, Defendant accelerated and rammed into Plaintiff’s vehicle,Defendant did not stop, and Defendant chose to flee the scene. Plaintiff further alleges that Plaintiff’s vehiclewas still drivable and Plaintiff gave chase until the Redding Police responded. Based on the damages, Defendantmust have been aware of the collision. Defendant’s acts are alleged to constitute a crime under Vehicle Codesection 20001 and Plaintiff asserts that Defendant’s acts were despicable. Plaintiff alleges punitive damagesunder both a malice and oppression theory.The facts alleged in the Complaint do not make it clear how severe the collision was, whether any damage toPlaintiff’s vehicle was visible, whether any injuries to Plaintiff were visible, or how far Defendant fled the sceneor in what manner. Many of the statements made are conclusions rather than statements of fact. Plaintiff did notallege that Defendant knew that Plaintiff was injured and the facts alleged are insufficient to support Defendant’sknowledge of injury. The allegation that fleeing the scene caused additional injury is also based on conclusionsrather than statements of fact. It is unclear how long medical treatment was delayed or how giving chase toDefendant affected Plaintiff’s injuries which are alleged to be “severe” without further detail.While it is certainly possible for a hit and run collision to result in a valid claim for punitive damages, the factsasserted here are so conclusory and vague that the Court cannot conclude that malice or oppression are properlyalleged. Without malice or oppression, punitive damages are not available to Plaintiff and the ExemplaryDamages Attachment would be unnecessary. “The law does not favor the imposition of punitive damages. Theyshould only be allowed in the ‘clearest of cases.’ Woolstrom v. Mailloux (1983) 141 Cal. App. 3d Supp 1, 9.Leave to Amend. Where there is a reasonable possibility that leave to amend can cure the defect noted in a motionto strike, Courts routinely grant such leave. It appears correcting the defects noted is possible here and the Courtwill grant Plaintiff leave to amend.The motion is GRANTED. Should Plaintiff intend to file a First Amended Complaint, the First AmendedComplaint must be filed and served within thirty days of today’s hearing. Should Plaintiff not file a FirstAmended Complaint, Defendant has ten days from the expiration of the time to file a First Amended Complaintto answer or otherwise plead to the Complaint. Defendant did not provide a proposed Order as required by LocalRule of Court 5.17(D). Defendant is to prepare the Order consistent with the Court’s ruling.****************************************************************************************** 9:00 a.m. – Review Hearings******************************************************************************************
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Aug 01, 2024 |Civil Unlimited (Medical Malpractice - Physici...) |24CV062948
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Aug 12, 2024 |S-CV-0051971
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MARCIA MINGO VS ALICIA ANN PARTNER
Jul 29, 2024 |23TRCV03433
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