On April 26, 2021 aTrial Materialswas filedinvolving a dispute betweenDonna Cole-Brule As Administratrix For The Estate Of Gregory Brown,Gregory Brown,andAerco International, Inc,Amchem Products, Inc., N K A Rhone Poulenc Ag Company, N K A Bayer Cropscience Inc,A.O. Smith Water Products Co,Aurora Pump Company,Bmce Inc., F K A United Centrifugal Pump,Bw Ip, Inc. And Its Wholly Owned Subsidiaries,Crane Co,Crane Co. Individually And As Successor To Pacific Valves,Flowserve Us, Inc. Individually And Successor To Rockwell Manufacturing Company, Edward Valve, Inc., Nordstrom Valves, Inc., Edward Vogt Valve Company, And Vogt Valve Company,Fmc Corporation, On Behalf Of Its Former Chicago Pump & Northern Pump Businesses,Ford Motor Company,General Electric Company,Genuine Parts Company, Trading As Napa Auto Parts,Goulds Pumps Llc,Grinnell Llc,Honeywell International, Inc., F K A Allied Signal, Inc. Bendix,Imo Industries, Inc,Itt Llc., Individually And As Successor To Bell & Gossett And As Successor To Kennedy Valve Manufacturing Co., Inc,Leviton Manufacturing Co., Inc,Morse Tec Llc, F K A Borg Warner Morse Tec Llc And Successor-By-Merger To Borg-Warner Corporation,Pfizer, Inc.,Pk&P Investment Co. F K A Mole-Richardson Co,Pneumo Abex Llc, Successor In Interest To Abex Corporation,Redco Corp. F K A Crane Co.,Rheem Manufacturing Company,Riley Power Inc,Slant Fin Corporation,The Marley-Wylain Company,Union Carbide Corporation,U.S. Rubber Company,Warren Pumps, Llc,Weil-Mclain, A Division Of The Marley-Wylain Company, A Wholly Owned Subsidiary Of The Marley Company, Llc,for Torts - Asbestosin the District Court of New York County.
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FILED: NEW YORK COUNTY CLERK 09/17/2021 04:47 PM INDEX NO. 190103/2021 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 09/17/2021 Shayla Y. Andrews Phone (212) 754-4053 Fax (212) 593-6970 syandrews@arfdlaw.com September 17, 2021 WEITZ & LUXENBERG, P.C. Post Office Address 700 Broadway New York, NY 10003 Re: BROWN, GREGORY V. A.O. SMITH WATER PRODUCTS CO, ET AL, INCLUDING FORD Index No.: 190103/2021 Our File No: 5012.848 Dear Counselor: Enclosed please find the Defendant’s Fact Witness List on Behalf of Ford Motor Company regarding the above referenced matter. Very truly yours, Shayla Andrews Shayla Y. Andrews SYA\sya cc: All known codefendants with enclosures. 1 of 7 FILED: NEW YORK COUNTY CLERK 09/17/2021 04:47 PM INDEX NO. 190103/2021 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 09/17/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------x IN RE: NEW YORK CITY : NYCAL ASBESTOS LITIGATION : -------------------------------------------------------------------x This Document Relates To: : : FACT WITNESS LIST OF GREGORY BROWN, : DEFENDANT FORD MOTOR : COMPANY Plaintiff(s), : : - against - : Index No.: 190103/2021 : : FORD MOTOR COMPANY, et al., : : Defendant(s). : : -------------------------------------------------------------------x DEFENDANT FORD MOTOR COMPANY’S DESIGNATION AND DISCLOSURE OF FACT WITNESSES Defendant Ford Motor Company (hereinafter “Ford”) designates and discloses the following fact witnesses: Preliminary Statement The scope and accuracy of this disclosure and designation is limited by the availability of full and complete discovery from plaintiff. Ford, therefore, cannot reasonably anticipate every product or fact scenario which may be identified or discussed by plaintiff and his witnesses. Accordingly, Ford reserves the right to designate additional witnesses or testimony, as may become necessary or desirable. 2 of 7 FILED: NEW YORK COUNTY CLERK 09/17/2021 04:47 PM INDEX NO. 190103/2021 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 09/17/2021 1. Persons who worked or supervised work at jobsites where plaintiff is alleged to have worked, including but not limited to all such persons identified in plaintiff’s interrogatory answers and deposition testimony. 2. Agents, representatives, former and current employees, and other persons acting on behalf of all named defendants. 3. Agents, representatives, and current employees, and other persons acting on behalf of plaintiff. 4. Agents, representatives, former and current employees, and other persons acting on behalf of owners and operators of jobsites where plaintiff worked. 5. Agents, representatives, former and current employees, and other persons acting on behalf of contractors that worked at jobsites where plaintiff worked. 6. Treating physicians of plaintiff. 7. Witnesses listed in plaintiff’s or any other party’s witness list or identified in discovery motions in this action. 8. Former Ford employees Arnold E. Anderson, Lawrence M. Roslinski, Ph. D. and Leonard Brown. 9. Ford Design Analysis Engineers, Mark Taylor, and Mathew Fyie. 10. Custodian of records or other witnesses needed to authenticate exhibits. 3 of 7 FILED: NEW YORK COUNTY CLERK 09/17/2021 04:47 PM INDEX NO. 190103/2021 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 09/17/2021 RESERVATION OF RIGHTS Ford reserves the right to: 1. Amend or supplement this Fact Witness List at the conclusion of discovery inasmuch as discovery is not completed in this matter; and 2. Amend or supplement this Fact Witness List depending upon the proof presented at trial. Date: New York, New York September 17, 2021 Yours, etc., Nancy Pennie ______________________________ BY: Nancy L. Pennie, Esq. AARONSON RAPPAPORT FEINSTEIN & DEUTSCH, LLP Attorneys for Defendant FORD MOTOR COMPANY 600 Third Avenue New York, New York 10016 212-593-6700 TO: WEITZ & LUXENBERG, P.C. Attorney(s) for Plaintiff Post Office Address 700 Broadway New York, NY 10003 ALL KNOWN DEFENSE COUNSEL 4 of 7 FILED: NEW YORK COUNTY CLERK 09/17/2021 04:47 PM INDEX NO. 190103/2021 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 09/17/2021 AFFIDAVIT OF SERVICE BY MAIL STATE OF NEW YORK ) ss.: COUNTY OF NEW YORK ) Shayia Andrews, being duly sworn, deposes and says: that deponent is not a party to the action, is over 18 years of age and resides at Union County, New Jersey. That on the 17**^ day of September, 2021, deponent served the within FACT WITNESS LIST o^/o the defendants FORD MOTOR COMPANY upon: WEITZ & LUXENBERG, P.C. Attorney(s) for Plaintiff Post Office Address 700 Broadway New York, NY 10003 (212)558-5500 ALL KNOWN DEFENSE COUNSEL PLEASE SEE SERVICE RIDER at the address designated by said attorney(s) for that purpose bvjiepositing a true copy of same via New York State Electronic Filing System. Sworn to before me this 17*^ day of September, J2021 TRACY DASH Commissioner of Deeds BROWN, GREGORY V. A.O. SMITH WATER PRODUCTS CO, City of New York - No. 4-4611 ETAL, INCLUDING FORD MOTOR COMPANY Certificate Filed In New York QounW ARFD File No.: 5012.848 Commission Expires May Index No.: 190103/2021 5 of 7 FILED: NEW YORK COUNTY CLERK 09/17/2021 04:47 PM INDEX NO. 190103/2021 NYSCEFGREGORY DOC. NO.BROWN, 78 v. Ford Motor Company et.al RECEIVED NYSCEF: 09/17/2021 Index No.: 190103/2021 File No.: 5012.848 Michelle D. Grady, Esq. Anna M. Dilonardo, Esq. Judith A. Yavitz, Esq. ECKERT SEAMANS CHERIN & MELLOT, LLC MARSHALL DENNEHEY WARNER COLEMAN & DARGER ERRANTE YAVITZ & BLAU LLP 10 Bank Street - Suite 700 GOGGIN 116 East 27TH Street - 12th Floor White Plains, NY 10606 105 Maxess Road - Suite 303 New York, NY 10016 Counsel For: A.O SMITH WATER PRODUCTS CO. Melville, NY 11747 Counsel For: AMCHEM PRODUCTS, INC., n/k/a RHONE Email: ealter@eckertseamans.com Counsel For: AERCO INTERNATIONAL, INC., POULENC AG COMPANY, n/k/a BAYER BMCE INC., f/k/a UNITED CENTRIFUGAL PUMP, CROPSCIENCE INC., LEVITON MANUFACTURING CO., INC. UNION CARBIDE CORPORATION MORSE TEC LLC, f/k/a BORG WARNER MORSE TEC Email: ddecicco@deybllp.com; LLC, and Successor-by-Merger to BORG-WARNER jyavitz@deybllp.com CORPORATION Kerryann M. Cook, Esq. Michael J. Testa, Esq. Tara L. Pehush, Esq. THE COOK GROUP, PLLC SEGAL McCAMBRIDGE SINGER & MAHONEY, LTD K&L GATES LLP 64 Beaver Street - Suite 201 850 Third Avenue - Suite 1100 599 Lexington Avenue New York, New York 10004 New York, NY 10022 New York, NY 10022 Counsel For: AURORA PUMP COMPANY Counsel For: BW/IP, INC. AND ITS WHOLLY OWNED Counsel For: CRANE CO., SUBSIDIARIES CRANE CO. Individually and as Successor to PACIFIC VALVES Brian Sorensen, Esq. Christopher P. Hannan, Esq. Tanenbaum Keale, Esq. McELROY DEUTSCH, MULVANEY & CARPENTER, KELLEY, JASONS, MCGOWAN, SPINELLI HANNA & TANENBAUM KEALE, LLP LLP REBER, LLP Three Gateway Center 225 Liberty Street - 36th Floor 120 Wall Street - 30th Floor 100 Mulberry Street - Suite 1301 New York, NY 10281 New York, NY 10005 Newark, NJ 07102 Counsel For: FMC CORPORATION, on behalf of its Counsel For: FLOWSERVE US, INC. Individually and Counsel For: GENERAL ELECTRIC COMPANY former CHICAGO PUMP & NORTHERN PUMP successor to Rockwell Manufacturing Company, Edward Email: mtanenbaum@tktrial.com BUSINESSES Valve, Inc., Nordstrom Valves, Inc., Edward Vogt Valve Company, and Vogt Valve Company Peter S. Marlette, Esq. John J. Fanning, Esq. Beth L. Hughes, Esq. BARCLAY DAMON LLP CULLEN AND DYKMAN LLP MORGAN, LEWIS & BOCKIUS, LLP The Avant Building 44 Wall Street - 15th Floor 101 Park Avenue 200 Delaware Avenue - Suite 1200 New York, NY 10005 New York, NY 10178 Buffalo, New York 14202 Counsel For: GOULDS PUMPS LLC Counsel For: GRINNELL LLC., Counsel For: GENUINE PARTS COMPANY, trading as ITT LLC., Individually and as successor to BELL & GOSSETT NAPA AUTO PARTS and as successor to KENNEDY VALVE MANUFACTURING CO., Inc. Donald R. Pugliese, Esq. David J. Goodearl, Esq. Joan M. Gasior, Esq. MCDERMOTT WILL & EMERY LLP LEADER & BERKON COLAO & SILVERSTEIN LLP RENZULLI LAW FIRM, LLP 340 Madison Avenue 630 Third Avenue - 17th Floor One North Broadway - Suite 1005 New York, NY 10173 New York, NY 10017 White Plains, NY 10601 Counsel For: HONEYWELL INTERNATIONAL, INC., Counsel For: IMO INDUSTRIES, INC., Counsel For: PFIZER, INC. (PFIZER) f/k/a ALLIED SIGNAL, INC. / BENDIX WARREN PUMPS, LLC Email: dpugliese@mwe.com WEIL-MCLAIN a division of The Marley-Wylain Company a wholly owned subsidiary of The Marley Company, LLC Email: dgoodearl@leaderberkon.com Edward Abbot, Esq. Lisa M. Pascarella, Esq. Regina Giovanni, Esq. HAWKINS PARNELL & YOUNG LLP PASCARELLA DIVITA, PLLC WATERS MCPHERSON, MCNEILL, P.C. 600 Lexington Avenue - 8th Floor 2137 Route 35 - Suite 290 14 Wall Street – Suite 1603 New York, NY 10022 Holmdel, NJ 07733 New York, NY 10005-2011 Counsel For: PNEUMO ABEX, LLC, successor in interest to Counsel For: RHEEM MANUFACTURING COMPANY Counsel For: RILEY POWER INC. ABEX CORPORATION (ABEX) Email: alendar@pdltlaw.com Email: eabbot@hptylaw.com Norman Golub, Esq. Norman Senior, Esq. WEITZ & LUXENBERG, P.C. LUCOSKY BROOKMAN LLP GREENFIELD, STEIN & SENIOR ATTORNEY(S) FOR PLAINTIFF 111 Broadway– 8th Floor 600 Third Avenue, 11th Floor Post Office Address New York, NY 10006 New York, NY 10016 700 Broadway Counsel For: SLANT/FIN CORPORATION Counsel For: U.S. RUBBER COMPANY (UNIROYAL) New York, NY 10003 (212) 558-5500 UNKNOWN COUNSELS PK&P INVESTMENT CO. f/k/a MOLE-RICHARDSON CO UNITED CONVEYOR CORPORATION 6 of 7 FILED: NEW YORK COUNTY CLERK 09/17/2021 04:47 PM INDEX NO. 190103/2021 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 09/17/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------x IN RE: NEW YORK CITY : NYCAL ASBESTOS LITIGATION : -------------------------------------------------------------------x This Document Relates To: : : GREGORY BROWN, : Index No.: 190103/2021 : Plaintiff(s), : : - against - : : : FORD MOTOR COMPANY, et al., : : Defendant(s). -------------------------------------------------------------------x FACT WITNESS LIST OF DEFENDANT FORD MOTOR COMPANY AARONSON RAPPAPORT FEINSTEIN & DEUTSCH, LLP Attorneys for Defendant FORD MOTOR COMPANY Office and Post Address 600 Third Avenue New York, NY 10016 212-593-6700 To: ALL PARTIES 7 of 7
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Premier joins in the motion for summary judgment.Plaintiff opposes the motion on the grounds that Ritz-Carlton fails to meet its burden and that there are triable issues of material fact that preclude the granting of summary judgment.AnalysisEvidentiary Objections“In granting or denying a motion for summary judgment or summary adjudication, the Court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” (Code Civ. Proc., § 437c, subd. (q).)The Court will reserve ruling on the evidentiary objections pending further briefing by the parties.Standard on Summary JudgmentA Defendant’s motion for summary judgment asks the Court to determine that the entire action has no merit, and to terminate the action without the necessity of a trial. (Code Civ. Proc., § 437c, subd. (a).) The procedure enables the Court to look behind the pleadings to determine whether the party against whom the motion is directed has evidence to back up the claims. The Court must determine from the evidence presented that there is no triable issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)The moving party bears the burden of persuasion that that there is no triable issue of material fact, and that it is entitled to judgment as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 235 Cal.4th 826, 850.) Consequently, a Defendant moving for summary judgment bears the burden of persuasion that one or more elements of the cause of action in question cannot be established, or that there is a complete defense thereto. (Ibid.) The motion must be supported by evidentiary facts, not merely the ultimate facts. Further, conclusions of fact or law are not sufficient to support a motion for summary judgment. (Snider v. Snider (1962) 200 Cal.App.2d 741, 751.) Once a moving Defendant meets its initial burden, the burden shifts to the Plaintiff to produce evidence to prove the existence of a triable issue of fact regarding that element of its cause of action or the defense at issue in the motion, and if Plaintiff is unable to do so, Defendant will be entitled to judgment as a matter of law. (Saelzler v. Advanced Group 400 (2001) 35 Cal.4th 763, 780-781.) In ruling on a motion for summary judgment, the trial Court must consider all of the evidence and all of the inferences reasonably drawn therefrom (Code Civ. Proc., § 437c, subd. (c)) and must view the evidence and inferences in the light most favorable to the opposing party. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843.) In examining the sufficiency of the affidavits filed in connection with a summary judgment motion, those filed by the moving party are strictly construed, and those of the opposing party are liberally construed. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20-21.) In resolving the motion, the Court may not weigh the evidence. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) Rather, the role of the trial Court in resolving a summary judgment motion is to determine whether issues of fact exist, not to decide the merits of the issues. (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.) A triable issue of material fact exists only if the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. (Aguilar v. Atlantic Richfield, supra, 25 Cal.4th at p. 850.) Any doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. (Molko v. Holy Spirit Assn., supra at p. 1107.)“ ‘Summary judgment law in this state . . . continues to require a Defendant moving for summary judgment to present evidence, and not simply point out that the Plaintiff does not possess, and cannot reasonably obtain, needed evidence. In this particular at least, it still diverges from federal law. For the Defendant must ‘ “support[ ]” ’ the ‘ “motion” ’ with evidence including ‘ “affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice” ’ must or may ‘ “be taken.” ’ (Code Civ. Proc., § 437c, subd. (b).) The Defendant may, but need not, present evidence that conclusively negates an element of the Plaintiff’s cause of action. The Defendant may also present evidence 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. But, as Fairbank v. Wunderman Cato Johnson (9th Cir.2000) 212 F.3d 528 concludes, the Defendant must indeed present evidence [ ]: Whereas, under federal law, ‘ “pointing out through argument’ (id. at p. 532) may be sufficient . . ., under state law, it is not.’ ” [Citation.]” (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 889-890.)Separate Statement“Code of Civil Procedure section 437c, subdivision (b)(1), requires each motion for summary judgment to be accompanied by a separate statement “ ‘setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence.’ ” California Rules of Court, rule 3.1350(d)(2)4 states: “ ‘The separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion.’ ” Under the Rules of Court, “ ‘ “Material facts’ “ are facts that relate to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion and that could make a difference in the disposition of the motion.’ ” (Rule 3.1350(a)(2).)” (Beltran v. Hard Rock Hotel Licensing, Inc. (2023) 97 Cal.App.5th 865, 850-851.)“The point of the separate statement is not to craft a narrative, but to be a concise list of the material facts and the evidence that supports them. “ ‘The separate statement serves two important functions in a summary judgment proceeding: It notifies the parties which material facts are at issue, and it provides a convenient and expeditious vehicle permitting the trial Court to hone in on the truly disputed facts.’ ” [Citation.]” (Ibid.)“The duty to comply with the law regarding separate statements applies to both sides of a motion for summary judgment or adjudication. The opposing party’s responses to the separate statement must be in good faith, responsive, and material. Responses should directly address the fact stated, and if that fact is not in dispute, the opposing party must so admit. It is completely unhelpful to evade the stated fact in an attempt to create a dispute where none exists.” (Ibid.)Castro’s responses to Ritz-Carlton’s separate statement of undisputed material facts are unhelpful. As what appears to have become common practice in opposing a motion for summary judgment, many of the responses are not made in good faith and appear to be attempts to create triable issues where none exist. For many of the facts, Plaintiff’s responses completely fail to specifically address what is being asserted, instead laying out lengthy recitations of “facts” that are not relevant to what is being stated. As just one example: Undisputed material fact No. 3 states, “The gym has exactly one ‘decline’ bench that has never been replaced or repaired, and Plaintiff was using it to do dumbbell presses while leaning back (declined) on the bench.” In response, Castro makes a meritless objection that the fact is overbroad, discusses the decline bench’s owner’s manual, discusses inspections, discusses Castro’s experts’ opinions regarding standards, etc. In total, the “response” consists of 22 paragraphs yet completely fails to address the stated fact. These types of responses are pervasive throughout and are improper.Plaintiff will be ordered to revise the response and provide material, good faith, responses that directly address the facts stated. If a fact is not reasonably subject to dispute, Castro must so admit. If the specific fact asserted is reasonably disputed, Castro should so state and reference the supporting admissible evidence.Negligence and Premises Liability“Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.” (Civ. Code, § 1714, subd. (a).)“The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury. [Citations.] Premises liability “ ‘ “is grounded in the possession of the premises and the attendant right to control and manage the premises” ’ ”; accordingly, “ ‘ “mere possession with its attendant right to control conditions on the premises is a sufficient basis for the imposition of an affirmative duty to act.” ’ ” [Citations.] But the duty arising from possession and control of property is adherence to the same standard of care that applies in negligence cases.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.)“Broadly speaking, premises liability alleges a Defendant property owner allowed a dangerous condition on its property or failed to take reasonable steps to secure its property against criminal acts by third parties.” (Delgado v. American Multi-Cinema (1999) 72 Cal.App.4th 1403, 1406, fn. 1.)“A Plaintiff seeking recovery for negligence against a landowner must establish sufficient facts or circumstances that support an inference of a breach of duty, to defeat a defense summary judgment motion. [Citation.] It is not enough to provide speculation or conjecture that a dangerous condition of property might have been present at the time of the accident.” (Howard v. Omni Hotels Management Corp. (2012) 203 Cal.App.4th 403, 421.)“The fact that an accident occurred does not give rise to a presumption that it was caused by negligence.” (Id. at p. 432.)Plaintiff’s entire opposition, as well as the opinions of his expert, presume the existence of a dangerous condition. Yet, Castro has provided no evidence of a dangerous condition. Ritz Carlton, on the other hand, has provided evidence that there was no dangerous condition present at the time of the accident, which contributed to Castro being injured. If there was no dangerous condition of the property that caused or contributed to his injuries, at the time of the accident, there is no viable premises liability case against Ritz Carlton.However, Plaintiff’s counsel and Plaintiff’s expert have declared under penalty of perjury that there was an inspection scheduled for July 16, 2024. That date is after the date that the opposition was filed but has since passed. Plaintiff’s counsel states that Plaintiff needs additional time. (Ekmekchyan Dec., ¶ 2 & Exh. A.)“If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the Court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.” (Code Civ. Proc., 437c, subd. (h).)While the Court is not pleased that Plaintiff did not inspect the weight bench previously, the Court finds that the inspection should take place, and any relevant report prepared, before the Court rules on the motion for summary judgment.The continued hearing date will be less than 30 days before the date set for trial. The Court finds good cause, based on the above, to hear the motion less than 30 days before the date of trial pursuant to Code of Civil Procedure section 437c, subdivision (a)(3). In the meantime, the parties are strongly encouraged to engage in meaningful settlement negotiations.While deferring its analysis of the majority of the arguments raised in the motion and opposition, the Court will note that res ipsa loquitur is inapplicable to the current action.“ ‘Res ipsa loquitur is a rule of evidence allowing an inference of negligence from proven facts. [Citations.] It is based on a theory of ‘ “probability” ’ where there is no direct evidence of Defendant's conduct, [citations] permitting a common sense inference of negligence from the happening of the accident. [Citations.] The rule thus assists Plaintiffs in negligence cases in regard to the production of evidence. [¶] The applicability of the doctrine depends on whether it can be said the accident was probably the result of negligence by someone and Defendant was probably the person who was responsible. [Citations.] In the absence of such probabilities, there is no basis for an inference of negligence serving to take the place of evidence of some specific negligent act or omission. [Citation.] [¶] A Plaintiff must produce the following evidence in order to receive the benefit of the doctrine: 1) the accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence; 2) it must have been caused by an agency or instrumentality within the exclusive control of the Defendant; and 3) the accident must not have been due to any voluntary action or contribution on the part of the Plaintiff. [Citations.]’ ” [Citation.]” (Scott v. Rayhrer (2010) 185 Cal.App.4th 1535, 1540.)As will be further explained following further briefing by the parties, Plaintiff can not satisfy the three prongs, to establish res ipsa loquitur, set forth above.
Ruling
FCS057573 - PEREZ, HEIDI JUDITH VS BOOKER, WESLEY (DMS)
Jul 26, 2024 |FCS057573
FCS057573Motions for ContemptTENTATIVE RULING:Petitioner’s “motions” for contempt are denied.No affidavit of the facts constituting any contempt has been presented to thecourt. The filing of a sufficient affidavit is a jurisdictional prerequisite to acontempt proceeding. (Code Civ. Proc. § 1211(a); Koehler v. Superior Court(2010) 181 Cal.App.4th 1153, 1169; Oil Workers Int’l Union v. Superior Court(1951) 103 Cal.App.2d 512, 541.) Page 1 of 1
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