Preview
1 COZEN O’CONNOR
Michael W. Melendez (SBN 125895)
2 Rebekah Shapiro (SBN 262834)
101 Montgomery Street, Suite 1400
3 San Francisco, CA 94104
Tel: (415) 644-0914
4 Fax: (415) 644-0978
Email: mmelendez@cozen.com
5 rshapiro@cozen.com
6 Valerie D. Rojas (SBN 180041)
601 S. Figueroa Street, Suite 3700
7 Los Angeles, CA 90017
Tel: (213) 892-7900
8 Fax: (213) 892-7999
Email: vrojas@cozen.com
9
Attorneys for Cross-Defendant
10 BAYVIEW ENVIRONMENTAL SERVICES, INC.
11 SUPERIOR COURT OF THE STATE OF CALIFORNIA
12 IN AND FOR THE COUNTY OF KERN
6601 S. FIGUEROA STREET, SUITE 3700
13
COZEN O’CONNOR
LOS ANGELES, CA 90017
THE PEOPLE OF THE STATE OF Case No.: BCV-22-101623
14 CALIFORNIA,
Plaintiff, CROSS-DEFENDANT BAYVIEW
15 v. ENVIRONMENTAL SERVICES,
INC.’S REPLY BRIEF IN SUPPORT
16 LPOD, INC., a California Corporation dba LAS OF MOTION TO STRIKE CLAIM
PALMAS OIL & DEHYDRATION; M & W FOR ATTORNEYS’ FEES
17 PORTER PROPERTIES, LLC, a California
Corporation limited liability company; MICHAEL J. [RESERVED]
18 PORTER, an individual; BRYAN PORTER, an
individual, and DOES 1 through 100.
19
Defendants
20
LPOD, INC., a California Corporation dba LAS DATE: December 15, 2022
21 PALMAS OIL & DEHYDRATION; M & W TIME: 8:30 a.m.
PORTER PROPERTIES, LLC, a California Dept.: 17
22 Corporation limited liability company; MICHAEL J.
PORTER, an individual; BRYAN PORTER, an Discovery Cutoff: None
23 individual, Motion Cutoff: None
Cross-Complainants,
24 v. Trial Date: None
CALIFORNIA RESOURCES CORPORATION,
25 a corporation; AIS, a business entity, form
unknown; BAYVIEW ENVIRONMENTAL
26 SERVICES, INC.; a corporation; SCHNITZER
STEEL, a business entity, form unknown; and
27 DOES 1 through 100,
28 Cross-Defendants.
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REPLY BRIEF ISO MOTION TO STRIKE CLAIM FOR ATTORNEY’S FEES IN CROSS-COMPLAINT
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1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION AND SUMMARY OF ARGUMENT
3 Cross-defendant Bayview Environmental Services, Inc. (“Bayview”) moved to strike
4 Defendants/Cross-complainants LPOD, Inc. dba Las Palmas Oil & Dehydration (“LPOD”), M&W
5 Porter Properties. LLC (“M&W”), Michael J. Porter (“Michael”) and Bryan Porter (“Bryan”)
6 (collectively, “Cross-complainants”) claim for attorneys’ fees because Cross-complainants fail to
7 allege any contractual or statutory provision, or other law, which permits them to recover attorney’s
8 fees from Bayview. Code Civ. Proc. §1033.5(a)(10). In their opposition, Cross-complainants argue
9 that they can recover attorneys’ fees from Bayview under the “tort of another” doctrine.
10 However, Cross-complainants’ argument is based upon the false premise that Cross-
11 complainants allege that Bayview is liable to them and plaintiff The People of the State of California
12 (the “County”) for a tort. The County alleges that Cross-complainants are liable for statutory
6601 S. FIGUEROA STREET, SUITE 3700
13 violations and penalties, and Cross-complainants allege that Bayview is liable for statutory
COZEN O’CONNOR
LOS ANGELES, CA 90017
14 violations. The “tort of another” doctrine does not apply here because, in this action, Cross-
15 complainants do not allege that Bayview committed a tort, and the County does not allege that
16 Cross-complainants or Bayview committed a tort.
17 Cross-complainants fail to cite to any authority which would permit them to recover
18 attorneys’ fees in this case. Cross-complainants also fail to refute the authorities cited by Bayview
19 in its motion, or to provide any authority which contradicts the authorities cited by Bayview hich
20 preclude recovery of attorneys’ fees here. Therefore, Bayview requests that the Court strike the
21 claim for attorney’s fees against it.
22 II. LEGAL ARGUMENT
23 A. The “Tort of Another Doctrine” Does Not Support Cross-Complainants’
24 Claim for Attorney’s Fees
25 Cross-complainants contend that they may recover attorneys’ fees from Bayview under the
26 “tort of another” doctrine. However, the County alleges causes of action for statutory violations and
27 penalties and does not allege any tort causes of action. Similarly, Cross-complainants in this action
28 allege that Bayview is liable for statutory violations. LPOD has already alleged tort theories of
1
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1 liability against Bayview in the firstaction it filed against Bayview - LPOD v. Schnitzer, et.al.
2 Therefore, the “tort of another” doctrine does not save Cross-complainants’ claim for attorneys’
3 fees.
4 Cross-complainants rely upon Prentice v. North Amer. Title Guar. Corp. (1963) 59 Cal.2d
5 618 and Sooy v. Peter (1990) 220 Cal.App.3d 1305, 1310 to oppose Bayview’s motion, but the
6 courts in both of those actions held that in order to support a claim for attorney’s fees under the “tort
7 of another” doctrine, the party must allege facts supporting defendant’s/cross-defendants’ tort
8 liability. Thus, these cases support Bayview’s motion, not Cross-complainant’s argument.
9 Cross-complainants also cite to Brandt v. Superior Court (1985) 37 Cal.3d 813, 818, in
10 support of their claim for attorneys’ fees. However, the court in Brandt specifically “established a
11 notable exception to [the American] rule for insurance bad faith cases.” Cassim v. Allstate Ins. Co.
12 (2004) 33 Cal.4th 780, 806. This is not an insurance bad faith case, and Bayview is not an insurer.
6601 S. FIGUEROA STREET, SUITE 3700
13 Accordingly, LPOD is not entitled to Brandt fees as a matter of law and the holding in Brandt has
COZEN O’CONNOR
LOS ANGELES, CA 90017
14 no application to this case.
15 Notably, Cross-complainants fail to address Bayview’s authorities cited in support of its
16 motion to strike the claim for attorneys’ fees. Cross-complainants also fail to cite to any authority
17 which would permit them to base a claim for attorneys’ fees on the “tort of another” doctrine in an
18 action based only upon strict liability for statutory penalties. There is simply no authority supporting
19 Cross-complainants’ claim for attorneys’ fees and therefore, the claim should be stricken.
20 III. CONCLUSION
21 Based on the foregoing, Bayview respectfully requests that this Court strike Cross-
22 complainants claim for attorneys’ fees.
23 Dated: December 8, 2022 COZEN O'CONNOR
24 By:
Michael W. Melendez
25 Valerie D. Rojas
Rebekah Shapiro
26 Attorneys for Cross-Defendant
BAYVIEW ENVIRONMENTAL SERVICES,
27 INC.
28
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1 CALIFORNIA STATE COURT PROOF OF SERVICE
2 The People of the State of California v. LPOD, Inc., et al.
Case No. BCV-22-101623
3
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
4
5 At the time of service, I was over 18 years of age and not a party to the action. My
business address is 601 S. Figueroa Street, Suite 3700, Los Angeles, CA 90017.
6
On December 8, 2022, I served the following document(s): CROSS-DEFENDANT
7 BAYVIEW ENVIRONMENTAL SERVICES, INC.’S REPLY IN SUPPORT OF MOTION
TO STRIKE CLAIM FOR ATTORNEYS’ FEES IN CROSS-COMPLAINT
8
9 I served the documents on the following persons at the following addresses (including fax
numbers and e-mail addresses, if applicable):
10
Matthew Williamson, Esq. Attorneys for Defendant
11 Manatt, Phelps & Phillips, LLP C.L. Knox, Inc.
2049 Century Park East, Suite 1700 (310) 312-4000
12 Los Angeles, CA 90067 MWilliamson@manatt.com
6601 S. FIGUEROA STREET, SUITE 3700
13
COZEN O’CONNOR
LOS ANGELES, CA 90017
Ralph B. Wegis, Esq. Attorneys for LPOD, Inc., dba Las Palmas
14 Law Offices of Ralph B. Wegis Oil & Dehydration; M&W Porter
1930 Truxtun Ave. Properties, LLC; Michael J. Porter; Bryan
15 Bakersfield, CA 93301 Porter
(661) 635-2100
16 RWegis@ralphwegis.com
17 Thomas V. Loran III, Esq. Attorneys for Schnitzer Industries, Inc.
Eric T. Moorman, Esq. (415) 983-1000
18 Pillsbury Winthrop Shaw Pittman, LLP Thomas.loran@pillsburylaw.com
Four Embarcadero Center, 22nd Floor Eric.Moorman@pillsburylaw.com
19 San Francisco, CA 94111
20 Cynthia J. Zimmer (661) 868-2340
District Attorney, County of Kern johanesian@kernda.org
21 John P. Ohanesian
Deputy District Attorney
22 1215 Truxtun Ave., 4th Floor
Bakersfield, CA 93301
23
24 The documents were served by the following means:
25 (BY U.S. MAIL) I enclosed the documents in a sealed envelope or package addressed to
the persons at the addresses listed above and placed the envelope or package for collection
26 and mailing, following our ordinary business practices. I am readily familiar with the
firm’s practice for collection and processing correspondence for mailing. Under that
27
practice, on the same day that correspondence is placed for collection and mailing, it is
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1 deposited in the ordinary course of business with the U.S. Postal Service, in a sealed
envelope or package with the postage fully prepaid.
2
(BY ELECTRONIC MAIL SERVICE) Based upon CRC Rule 2.251 or an agreement of
3 the parties to accept electronic service, I caused such document(s) to be Electronically
4 Mailed through Cozen O’Connor electronic mail system for the above entitled case.
Should your office require a hard copy of said document, please contact our office.
5
I declare under penalty of perjury under the laws of the State of California that the
6 foregoing is true and correct.
7 Executed on December 8, 2022, at Los Angeles, California.
8
/s/ Karla Uria
9 Karla Uria
10
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6601 S. FIGUEROA STREET, SUITE 3700
13
COZEN O’CONNOR
LOS ANGELES, CA 90017
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Preview
1 COZEN O’CONNOR Michael W. Melendez (SBN 125895) 2 Rebekah Shapiro (SBN 262834) 101 Montgomery Street, Suite 1400 3 San Francisco, CA 94104 Tel: (415) 644-0914 4 Fax: (415) 644-0978 Email: mmelendez@cozen.com 5 rshapiro@cozen.com 6 Valerie D. Rojas (SBN 180041) 601 S. Figueroa Street, Suite 3700 7 Los Angeles, CA 90017 Tel: (213) 892-7900 8 Fax: (213) 892-7999 Email: vrojas@cozen.com 9 Attorneys for Cross-Defendant 10 BAYVIEW ENVIRONMENTAL SERVICES, INC. 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 IN AND FOR THE COUNTY OF KERN 6601 S. FIGUEROA STREET, SUITE 3700 13 COZEN O’CONNOR LOS ANGELES, CA 90017 THE PEOPLE OF THE STATE OF Case No.: BCV-22-101623 14 CALIFORNIA, Plaintiff, CROSS-DEFENDANT BAYVIEW 15 v. ENVIRONMENTAL SERVICES, INC.’S REPLY BRIEF IN SUPPORT 16 LPOD, INC., a California Corporation dba LAS OF MOTION TO STRIKE CLAIM PALMAS OIL & DEHYDRATION; M & W FOR ATTORNEYS’ FEES 17 PORTER PROPERTIES, LLC, a California Corporation limited liability company; MICHAEL J. [RESERVED] 18 PORTER, an individual; BRYAN PORTER, an individual, and DOES 1 through 100. 19 Defendants 20 LPOD, INC., a California Corporation dba LAS DATE: December 15, 2022 21 PALMAS OIL & DEHYDRATION; M & W TIME: 8:30 a.m. PORTER PROPERTIES, LLC, a California Dept.: 17 22 Corporation limited liability company; MICHAEL J. PORTER, an individual; BRYAN PORTER, an Discovery Cutoff: None 23 individual, Motion Cutoff: None Cross-Complainants, 24 v. Trial Date: None CALIFORNIA RESOURCES CORPORATION, 25 a corporation; AIS, a business entity, form unknown; BAYVIEW ENVIRONMENTAL 26 SERVICES, INC.; a corporation; SCHNITZER STEEL, a business entity, form unknown; and 27 DOES 1 through 100, 28 Cross-Defendants. 1 REPLY BRIEF ISO MOTION TO STRIKE CLAIM FOR ATTORNEY’S FEES IN CROSS-COMPLAINT LEGAL\60595302\1 0009927/00519444 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION AND SUMMARY OF ARGUMENT 3 Cross-defendant Bayview Environmental Services, Inc. (“Bayview”) moved to strike 4 Defendants/Cross-complainants LPOD, Inc. dba Las Palmas Oil & Dehydration (“LPOD”), M&W 5 Porter Properties. LLC (“M&W”), Michael J. Porter (“Michael”) and Bryan Porter (“Bryan”) 6 (collectively, “Cross-complainants”) claim for attorneys’ fees because Cross-complainants fail to 7 allege any contractual or statutory provision, or other law, which permits them to recover attorney’s 8 fees from Bayview. Code Civ. Proc. §1033.5(a)(10). In their opposition, Cross-complainants argue 9 that they can recover attorneys’ fees from Bayview under the “tort of another” doctrine. 10 However, Cross-complainants’ argument is based upon the false premise that Cross- 11 complainants allege that Bayview is liable to them and plaintiff The People of the State of California 12 (the “County”) for a tort. The County alleges that Cross-complainants are liable for statutory 6601 S. FIGUEROA STREET, SUITE 3700 13 violations and penalties, and Cross-complainants allege that Bayview is liable for statutory COZEN O’CONNOR LOS ANGELES, CA 90017 14 violations. The “tort of another” doctrine does not apply here because, in this action, Cross- 15 complainants do not allege that Bayview committed a tort, and the County does not allege that 16 Cross-complainants or Bayview committed a tort. 17 Cross-complainants fail to cite to any authority which would permit them to recover 18 attorneys’ fees in this case. Cross-complainants also fail to refute the authorities cited by Bayview 19 in its motion, or to provide any authority which contradicts the authorities cited by Bayview hich 20 preclude recovery of attorneys’ fees here. Therefore, Bayview requests that the Court strike the 21 claim for attorney’s fees against it. 22 II. LEGAL ARGUMENT 23 A. The “Tort of Another Doctrine” Does Not Support Cross-Complainants’ 24 Claim for Attorney’s Fees 25 Cross-complainants contend that they may recover attorneys’ fees from Bayview under the 26 “tort of another” doctrine. However, the County alleges causes of action for statutory violations and 27 penalties and does not allege any tort causes of action. Similarly, Cross-complainants in this action 28 allege that Bayview is liable for statutory violations. LPOD has already alleged tort theories of 1 REPLY BRIEF ISO MOTION TO STRIKE CLAIM FOR ATTORNEY’S FEES IN CROSS-COMPLAINT LEGAL\60595302\1 0009927/00519444 1 liability against Bayview in the firstaction it filed against Bayview - LPOD v. Schnitzer, et.al. 2 Therefore, the “tort of another” doctrine does not save Cross-complainants’ claim for attorneys’ 3 fees. 4 Cross-complainants rely upon Prentice v. North Amer. Title Guar. Corp. (1963) 59 Cal.2d 5 618 and Sooy v. Peter (1990) 220 Cal.App.3d 1305, 1310 to oppose Bayview’s motion, but the 6 courts in both of those actions held that in order to support a claim for attorney’s fees under the “tort 7 of another” doctrine, the party must allege facts supporting defendant’s/cross-defendants’ tort 8 liability. Thus, these cases support Bayview’s motion, not Cross-complainant’s argument. 9 Cross-complainants also cite to Brandt v. Superior Court (1985) 37 Cal.3d 813, 818, in 10 support of their claim for attorneys’ fees. However, the court in Brandt specifically “established a 11 notable exception to [the American] rule for insurance bad faith cases.” Cassim v. Allstate Ins. Co. 12 (2004) 33 Cal.4th 780, 806. This is not an insurance bad faith case, and Bayview is not an insurer. 6601 S. FIGUEROA STREET, SUITE 3700 13 Accordingly, LPOD is not entitled to Brandt fees as a matter of law and the holding in Brandt has COZEN O’CONNOR LOS ANGELES, CA 90017 14 no application to this case. 15 Notably, Cross-complainants fail to address Bayview’s authorities cited in support of its 16 motion to strike the claim for attorneys’ fees. Cross-complainants also fail to cite to any authority 17 which would permit them to base a claim for attorneys’ fees on the “tort of another” doctrine in an 18 action based only upon strict liability for statutory penalties. There is simply no authority supporting 19 Cross-complainants’ claim for attorneys’ fees and therefore, the claim should be stricken. 20 III. CONCLUSION 21 Based on the foregoing, Bayview respectfully requests that this Court strike Cross- 22 complainants claim for attorneys’ fees. 23 Dated: December 8, 2022 COZEN O'CONNOR 24 By: Michael W. Melendez 25 Valerie D. Rojas Rebekah Shapiro 26 Attorneys for Cross-Defendant BAYVIEW ENVIRONMENTAL SERVICES, 27 INC. 28 2 REPLY BRIEF ISO MOTION TO STRIKE CLAIM FOR ATTORNEY’S FEES IN CROSS-COMPLAINT LEGAL\60595302\1 0009927/00519444 1 CALIFORNIA STATE COURT PROOF OF SERVICE 2 The People of the State of California v. LPOD, Inc., et al. Case No. BCV-22-101623 3 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES 4 5 At the time of service, I was over 18 years of age and not a party to the action. My business address is 601 S. Figueroa Street, Suite 3700, Los Angeles, CA 90017. 6 On December 8, 2022, I served the following document(s): CROSS-DEFENDANT 7 BAYVIEW ENVIRONMENTAL SERVICES, INC.’S REPLY IN SUPPORT OF MOTION TO STRIKE CLAIM FOR ATTORNEYS’ FEES IN CROSS-COMPLAINT 8 9 I served the documents on the following persons at the following addresses (including fax numbers and e-mail addresses, if applicable): 10 Matthew Williamson, Esq. Attorneys for Defendant 11 Manatt, Phelps & Phillips, LLP C.L. Knox, Inc. 2049 Century Park East, Suite 1700 (310) 312-4000 12 Los Angeles, CA 90067 MWilliamson@manatt.com 6601 S. FIGUEROA STREET, SUITE 3700 13 COZEN O’CONNOR LOS ANGELES, CA 90017 Ralph B. Wegis, Esq. Attorneys for LPOD, Inc., dba Las Palmas 14 Law Offices of Ralph B. Wegis Oil & Dehydration; M&W Porter 1930 Truxtun Ave. Properties, LLC; Michael J. Porter; Bryan 15 Bakersfield, CA 93301 Porter (661) 635-2100 16 RWegis@ralphwegis.com 17 Thomas V. Loran III, Esq. Attorneys for Schnitzer Industries, Inc. Eric T. Moorman, Esq. (415) 983-1000 18 Pillsbury Winthrop Shaw Pittman, LLP Thomas.loran@pillsburylaw.com Four Embarcadero Center, 22nd Floor Eric.Moorman@pillsburylaw.com 19 San Francisco, CA 94111 20 Cynthia J. Zimmer (661) 868-2340 District Attorney, County of Kern johanesian@kernda.org 21 John P. Ohanesian Deputy District Attorney 22 1215 Truxtun Ave., 4th Floor Bakersfield, CA 93301 23 24 The documents were served by the following means: 25 (BY U.S. MAIL) I enclosed the documents in a sealed envelope or package addressed to the persons at the addresses listed above and placed the envelope or package for collection 26 and mailing, following our ordinary business practices. I am readily familiar with the firm’s practice for collection and processing correspondence for mailing. Under that 27 practice, on the same day that correspondence is placed for collection and mailing, it is 28 3 REPLY BRIEF ISO MOTION TO STRIKE CLAIM FOR ATTORNEY’S FEES IN CROSS-COMPLAINT LEGAL\60595302\1 0009927/00519444 1 deposited in the ordinary course of business with the U.S. Postal Service, in a sealed envelope or package with the postage fully prepaid. 2 (BY ELECTRONIC MAIL SERVICE) Based upon CRC Rule 2.251 or an agreement of 3 the parties to accept electronic service, I caused such document(s) to be Electronically 4 Mailed through Cozen O’Connor electronic mail system for the above entitled case. Should your office require a hard copy of said document, please contact our office. 5 I declare under penalty of perjury under the laws of the State of California that the 6 foregoing is true and correct. 7 Executed on December 8, 2022, at Los Angeles, California. 8 /s/ Karla Uria 9 Karla Uria 10 11 12 6601 S. FIGUEROA STREET, SUITE 3700 13 COZEN O’CONNOR LOS ANGELES, CA 90017 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 REPLY BRIEF ISO MOTION TO STRIKE CLAIM FOR ATTORNEY’S FEES IN CROSS-COMPLAINT LEGAL\60595302\1 0009927/00519444