On December 03, 2013 a Motion-Secondary was filed involving a dispute between Karidis-Koepke, Nancy, Koepke, Harold, and A.B.C. Mobile Systems, A.B.C. Mobile Systems, Individually And As, American Honda Motor Co. Inc., Bell Industries, Inc., Bell Industries Inc., Individually And As, Belnortel Corporation, D.B.A. A.B.C. Mobile Brake, Borgwarner Morse Tec, Inc., Borgwarner Morse Tec Inc., Individually And As, Burlingame Auto Supply, Continental Automotive Systems, Inc., Cooper Industries Llc, Cooper Industries, Llc, Individually And As, Don L. Morris, Inc., First Doe Through Four Hundredth Doe, Inclusive, Fmc Corporation-John Bean Automotive Equipment, Fmc Technologies, Inc., Individually And As, Folsom Auto Supply, Ford Motor Company, Foreland Parts, Inc.,, Genuine Parts Company, H.M. Royal, Inc., Honeywell International, Inc., Fka Allied Signal,, Kelsey-Hayes Company, Lear Siegler Diversified Holdings Corp.,, Les Vogel Chevrolet Company, Metropolitan Life Insurance Company, Morton International, Inc., A Rohm And Haas, Morton International, Llc, Formerly Known As, National Automotive Parts Association, Parker Hannifin Corporation, Parker Hannifin Corporation, Individually And As, Pneumo Abex Llc, Individually And As Successor In, Rox Automotive, Shell Oil Company, Specialty Foreign Auto Parts, Inc., Erroneously, The Budd Company, Thyssenkrupp Budd Company Sued As "The Budd, Toyota Motor Sales, U.S.A., Inc., University Distributors, Inc., Erroneously Sued, Volkswagen Group Of America, Inc., W. Berry Hurley Corporation, D.B.A. Federal Auto, Karidis-Koepke, Nancy, Koepke, Harold, The Hertz Corporation, for civil in the District Court of San Francisco County.
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Jennifer A. Kuenster, State Bar NO. 104607 jkuenster@nixonpeabody.com Ross M. Petty, State Bar NO. 166366 ELECTRONICALLY rpetty@nixonpeabody.com FILED John A. Chatowski, State Bar NO, 174471 Superior Court of California, jchatowski@nixonpeabody.com County of San Francisco NIXON PEABODY LP APR 18 2014 One Embarcadero Center, Suite 1800 Clerk of the Court San Francisco, CA 94111-3600 BY: RAYMOND bepuly Clerk Tel: 415-984-8200 Fax: 866-452-6538 Attorneys for Defendant SHELL OIL COMPANY SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO HAROLD KOEPKE and NANCY Case NO. CGC-13-276217 KARIDIS-KOEPKE, DEFENDANT SHELL OIL COMPANY'S Plaintiffs, OPPOSITION TO PLAINTIFFS’ MOTION FOR LEAVE TO FILE FIRST AMENDED vs. COMPLAINT FORD MOTOR COMPANY, et al, Judge: Hon. Teri Jackson Date: May 1, 2014 Defendants. Time: 9:30 a.m. Dept.: 503 Complaint filed: December 3, 2013 Trial Date: June 16, 2014 Defendant Shell Oil Company (“Shell”) opposes Plaintiffs Harold Koepke and Karidis Koepke’s (“Plaintiffs”) Motion for Leave to File First Amended Complaint (the “Motion”). In this asbestos action, Plaintiffs contend that from 1972 until 1982 Harold Koepke was an independent Shell gas station operator in San Francisco, during which time he was exposed to asbestos-containing products. In their Motion, Plaintiffs claim that as a result of documents produced by Shell they should be permitted amend their Complaint to add a twelfth cause of action for negligence and a thirteenth cause of action for negligent undertaking against Shell. -1- DEFENDANT SHELL OIL COMPANY’S OPPOSITION TO PLAINTIFFS’ MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINTSpecifically, Plaintiffs assert that these unidentified documents suggest that Shell provided certain “mechanical training to dealers and issued internal policies and procedures relating to the handling, use, and disposal of asbestos products.” (Motion, p. | at lis. 25-27.) Plaintiffs claim that good cause exists to permit them to file their First Amended Complaint because Plaintiffs were diligent and Shell will suffer no prejudice because these new “facts” were known to Shell and Plaintiffs are seeking the same relief stated in their initial Complaint. Generally, judicial policy favors resolution of all disputed matters in the same lawsuit. As a result, the court's discretion will usually be exercised liberally to permit amendment of the pleadings. See Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596; Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428, However, a judge undoubtedly has discretion to deny leave to amend where a proposed amendment fails to state a valid cause of action. California Casualty, supra, 173 Cal_App.3d at 280-281; Foxborough v, Van Atta (1994) 26 Cal.App.4th 217, 230. This is the case here. Rule 3.1324(b) of the California Rules of Court provides that a motion for leave to file an amended complaint must be accompanied by a declaration that, among other things, explains “[w]hy the amendment is necessary and proper.” C.R.C. 3.1324(b)(2). Plaintiffs, however, have not explained the legal basis for their new claims, that is, the legal authority upon which they believe the new “facts” alleged would create liability for Shell. Both causes of action are premised upon purported “training” by Shell. However, Plaintiffs do not provide any specific details about this training, let alone that by providing Mr. Koepke with said training, Shell undertook additional obligations and training as it relates to asbestos. The vague facts alleged would not support any such liability. Because Plaintiffs’ proposed new causes of action are incapable of being amended in such a way to state a cause of action, the Court should utilize its discretion and deny Plaintiffs’ Motion in its entirety. See California Casualty General Ins. Co. v. Sup. Ct. (Gorgei) (1985) 173 Cal.App.3d 274, 280-281. Date: April 18, 2014 NIXON PEABODY LLP By: 4s/ John A. Chatowski John A. Chatowski Attorneys for Defendant SHELL OIL COMPANY DEFENDANT SHELL O1L COMPANY’S OPPOSITION TO PLAINTIFFS’ MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINTYn Ww HAROLD KOEPKE y. FORD MOTOR COMPANY, et al. San Francisco Superior Court Case Docket #CGC-13-276217 PROOF OF SERVICE BY ELECTRONIC TRANSMISSION I, Shelly K. Wetherington, declare that I am, and was at the time of service of the documents herein referred to, over the age of eighteen and not a party to the within action. [am employed in the County of San Francisco, California. My business address is One Embarcadero Center, #1800, San Francisco, CA 94111. On the date indicated below, I electronically served the document/s via File & ServeXpress described as: DEFENDANT SHELL OIL COMPANY’S OPPOSITION TO PLAINTIFFS’ MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT on the recipients designated on the Transaction Receipt located on the File & ServeXpress website. I declare under the penalty of perjury pursuant to the law of the State of California that the foregoing is true and correct and was executed on April 18, 2014 at San Francisco, California. 48/ Shelly K. Wetherington 14945038.1