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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK:
In Re: New York City Asbestos Litigation
______________________________________________ Hon. Lucy Billings, J.S.C.
DELIA and ROBERT GABLE, as Executors
of the Estate of Susan Gable, Index No. 190235/2016
Plaintiff(s)
-against-
AERCO INTERNATIONAL, et al.,
Defendants.
MEMORANDUM OF LAW IN SUPPORT OF
CERTAINTEED CORPORATION’S MOTION TO DISMISS
Craig Blau, Esq.
Mark I. Friesz, Esq.
Jason F. Kaufman, Esq.
DARGER ERRANTE YAVIZ & BLAU LLP
116 East 27th Street at Park Avenue
New York, NY 10016
212.452.5300
Counsel for CertainTeed Corporation
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TABLE OF CONTENTS
PRELIMINARY STATEMENT...................................................................................................... 1
SUMMARY OF RELEVANT TESTIMONY & FACTS ................................................................. 1
ARGUMENT .................................................................................................................................. 2
I. CertainTeed Is Not Subject To The Jurisdiction Of New York Courts And This Case
Should Therefore Be Dismissed Against CertainTeed .............................................................. 2
A. CertainTeed Is Not Subject To Jurisdiction Under CPLR 301. ........................................... 3
B. CertainTeed Is Not Subject To Jurisdiction Under CPLR 302. ........................................... 5
1. CertainTeed Is Not Subject To Jurisdiction Under CPLR 302(a)(1) Or (a)(4)
Because Plaintiffs’ Claims Do Not Arise From Any Of CertainTeed’s
Contacts With New York. ........................................................................................... 6
2. CertainTeed Is Not Subject To Jurisdiction Under CPLR 302(a)(2) Because
It Did Not Commit A Tortious Act In New York. ....................................................... 7
3. CertainTeed Is Not Subject To Jurisdiction Under CPLR 302(a)(3) Because
The Alleged Injury Did Not Occur In New York. ....................................................... 7
C. CertainTeed Is Not Subject To The General Jurisdiction Of New York Courts
By Virtue Of Its Registration To Do Business In The State. ............................................... 8
CONCLUSION ............................................................................................................................. 17
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TABLE OF AUTHORITIES
Cases
Augsbury Corp. v. Petrokey Corp.
97 A.D. 2d 173, 175 (3d Dep't 1983) ............................................................................... 10, 13
Aybar v. Aybar
2016 WL 3389890, at *1 (Sup. Ct., Queens County 2016) ......................................... 11, 12, 13
Bagdon v. Philadelphia & Reading Coal & Iron Co.
217 NY 432, 436-37 [1916] ...................................................................................................10
Bailen v. Air & Liquid Systems Corp.
No. 190318/12, (Sup. Ct., New York County, August 05, 2014) (Heitler, J.).................... 11, 13
Barrett v. Union Pac. R.R. Co.
No. S063914, 2017 WL 823860 (Or. Mar. 2, 2017) ...............................................................15
Beach v. Citigroup Alt. Invs. LLC
No. 12 Civ. 7717 (PKC), 2014 WL 904650, at *6 (S.D.N.Y. 2014) .......................................12
Benson v. Syntex Laboratories, Inc.
161 Misc. 2d 822, 614 N.Y.S.2d 990 (Sup. Ct. N.Y. Co. 1994) ................................................7
BNSF Ry. Co. v. Tyrell
137 S. Ct. 1549, 198 L.Ed.2d 36 (2017) ...................................................................................4
Bonkowski v. HP Hood LLC
2016 WL 4536868, at *2–4 (E.D.N.Y. Aug. 30, 2016)..................................................... 12, 13
Bristol-Meyers Squibb Co. v. Superior Court of California, San Francisco County
137 S. Ct. 1773, 198 L.ED.2d 395 (2017) ................................................................................5
Brown v. Lockheed Martin Corp.
814 F.3d 619 (2d Cir. 2016) ..........................................................................2, 4, 10, 12, 13, 14
Chatwal Hotels & Resorts LLC v. Dollywood
90 F. Supp. 3d 97 (S.D.N.Y. 2015) .................................................................................. 11, 13
Chong v. Healthtronics, Inc.
2007 U.S. Dist. LEXIS 45956 at *17, 2007 WL 1836831 (E.D.N.Y. June 20, 2007) .............. 13
Corporate Jet Support, Inc. v Lobosco Ins. Group, L.L.C.
2015 NY Slip Op 32438(U) (Sup. Ct., New York County, October 7, 2015) (Kern, J.) ..........11
D & R Glob. Selections, S.L. v. Bodega Olegario Falcon Pineiro
29 N.Y.3d 292, 78 N.E.3d 1172 (2017)....................................................................................4
D & R Glob. Selections, S.L. v. Pineiro
128 A.D.3d 486, 487, 9 N.Y.S.3d 234 (1st Dep’t 2015) ............................................................4
Daimler v. Bauman
134 S. Ct. 746 (2014).................................................................. 3, 9, 10, 11, 12, 13, 14, 15, 16
Davis v. Scottish Re Grp. Ltd.
46 Misc. 3d 1206(A), 9 N.Y.S.3d 592 (Sup. Ct. New York County 2014) ................................4
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Display Works, LLC v. Bartley
182 F. Supp. 3d 166, 175 (D.N.J. 2016) .................................................................................16
Doubet LLC v. Trustees of Columbia Univ. in the City of N.Y.
99 AD3d 433 [1st Dept 2012] ................................................................................................10
Famular v. Whirlpool Corp.
No. 16 CV 944 (VB), 2017 WL 2470844, at *4 (S.D.N.Y. June 7, 2017) ...............................12
Fantis Foods, Inc. v. Standard Importing
49 N.Y.2d 317 (1980) ..............................................................................................................7
Feathers v. McLucas
15 N.Y.2d 443, 261 N.Y.S.2d 8 (1965). ...................................................................................7
Figueroa v. BNSF Ry. Co.
No. S063929, 2017 WL 822719 (Or. Mar. 2, 2017) ...............................................................15
Genuine Parts Co. v. Cepec
137 A.3d 123, 126 (Del. 2016)...............................................................................................15
Goodyear v. Dunlap Tires Operations, S.A. v. Brown
131 S. Ct. 2846 (2011) ....................................................................................... 3, 9, 10, 15, 16
Gucci America v. Weixing Li
768 F.3d 122 (2d Cir. 2014) ............................................................................................... 4, 11
Hardware v. Ardowork Corp.
117 A.D.3d 561986 N.Y.S. 2d 445, (1st Dep’t 2014) ...............................................................8
International Shoe Co. v. Washington
326 U.S. 310 (1945) ................................................................................................................2
Kramer v. Hotel Los Monteros S.A.
57 A.D.2d 756, 94 N.Y.S. 2d 415 (1st Dep't 1977)...................................................................7
Lamarca v. Pak Mor Mfg. Co.
95 N.Y.2d 210, 713 N.Y.S.2d 304 (2000) ................................................................................5
Lamarr v. Klein
315 N.Y.S.2d 695 (1970) .........................................................................................................2
Lancaster v. Colonial Motor Freight
177 AD 2d 152, 581 NYS 2d 283 (1st Dep’t 1992) ..................................................................7
Landoil Res. Corp. v. Alexander & Alexander Servs., Inc.
918 F.2d 1039 (2d Cir. 1990) .................................................................................................11
McGowan v. Smith
52 N.Y.2d 268, 437 N.Y.S.2d 643 (1981) ................................................................................6
Minholz v. Lockheed Martin Corp.
227 F.Supp.3d 249 (N.D.N.Y. 2016)......................................................................................14
Mischel v. Safe Haven Enters., LLC
2017 NY Slip Op 30774(U) at 4-5 ................................................................................... 10, 11
Muollo v. Crestwood Village, Inc.
155 AD2d 420 [2nd Dept 1989] .............................................................................................10
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Pennoyer v. Neff
95 U.S. 714 (1878) ................................................................................................................16
Sean Snowdale et al. v. A.O . Smith Water Products et al.
Index No. 190202/2015 (Sup. Ct. New York County September 7, 2017) (Billings, J.) ............9
Serov ex rel. Serova v. Kerzner Int'l Resorts, Inc.
52 Misc. 3d 1214(A), 43 N.Y.S.3d 769 (N.Y. Sup. Ct. 2016) .................................................11
Sonera Holding B.V. v Cukurova Holding A.S.
750 F.3d 221 (2d Cir. 2014) .....................................................................................................2
State ex rel. Norfolk S. Ry. v. Dolan
No. SC95514, 2017 WL 770977, at *8 (Mo. Feb. 28, 2017)...................................................15
Stewart v. Volkswagen of America
81 N.Y.2d 203, 597 N.Y.S.2d 612 (1993) ................................................................................2
Taormina v. Thrifty Car Rental
No. 16-CV-3255 (VEC), 2016 WL 7392214, at *6–7
(S.D.N.Y. Dec. 21, 2016)................................................................................................. 11, 12
Walden v. Fiore
134 S. Ct. 1115 (2014) .............................................................................................................6
Wilderness USA, Inc. v. Deangelo Bros., LLC
2017 WL 3635123 (W.D.N.Y. August 23, 2017) ............................................................. 11, 14
Statutes
N.Y. Bus. Corp. Law §1301 ........................................................................................ 1, 9, 14, 15
Rules
CPLR 301 ........................................................................................................................... 3, 4, 9
CPLR 302 ............................................................................................................................... 5, 9
CPLR 302(a) ....................................................................................................................... 5, 6, 8
CPLR 302(a)(1) ..........................................................................................................................6
CPLR 302(a)(2) ..........................................................................................................................7
CPLR 302(a)(3) ...................................................................................................................... 7, 8
CPLR 302(a)(4) ...................................................................................................................... 6, 7
Other Authorities
Allan R. Stein, The Meaning of “Essentially At Home” in Goodyear Dunlop,
63 S.C.L.Rev. 527, 547-48 (2012) .........................................................................................16
Lee Scott Taylor, Registration Statutes, Personal Jurisdiction, and the Problem of
Predictability 103 Colum. L. Rev. 1163 (2003) .....................................................................16
Tanya J. Monestier, Registration Statutes, General Jurisdiction, and the Fallacy of
Consent, 36 Cardozo L. Rev. 1343 (2015) ................................................................. 14, 15, 16
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PRELIMINARY STATEMENT
Defendant CertainTeed Corporation (“CertainTeed”) submits this Memorandum of Law in
support of its motion to dismiss the Complaint based on lack of personal jurisdiction, along with
the affirmation of Mark I. Friesz, Esq. dated October 16, 2017 (“Friesz Aff”), and the exhibits
attached thereto, including the affidavit of CertainTeed representative Michael T. Starczewski,
sworn to September 22, 2017 (“Starczewski Aff.”), attached to the Friesz Aff. at Ex. 6. As fully
set forth herein, CertainTeed’s motion should be granted because this Court lacks personal
jurisdiction over CertainTeed in this case.
SUMMARY OF RELEVANT TESTIMONY & FACTS
Plaintiffs’ decedent Susan M. Gable (“Ms. Gable”) testified that from 1956 to 1970 she
worked together with her father performing renovations and repair work at various childhood
homes in Massachusetts, during which time she allegedly worked with a number of products that
she believed contained asbestos, including CertainTeed siding shingles. See Friesz Aff., Ex. 5,
Transcripts of Ms. Gable’s discovery deposition (“Gable Tr.”) at 37:20-39:4; 59:25-60:11; 65:5-
70:19; 66:10-66:17; 72:15-73:7; 73:20-22. Ms. Gable testified to encountering CertainTeed siding
shingles only in the State of Massachusetts. See generally Ex. 5, Gable Tr. Ms. Gable has never
alleged exposure to any CertainTeed product in the State of New York.
CertainTeed is a Delaware corporation with its headquarters and principal place of business
in Pennsylvania. See Friesz Aff. Ex. 6, Starczewski Aff at ¶ 6. CertainTeed is registered to do
business in New York (Id. at ¶ 10) pursuant to N.Y. Bus. Corp. Law §1301. CertainTeed
manufactured asbestos-cement siding shingles for one or two years during the 1920s. CertainTeed
has not manufactured siding shingles since the 1920s. See id. at ¶ 14. During certain years after
the 1920s, CertainTeed purchased asbestos-cement siding shingles from other companies and
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relabeled them for resale under CertainTeed's name. See id. at ¶ 15. Specifically with respect to
customers on the east coast, from the early 1950s until approximately 1975, CertainTeed resold
asbestos-cement siding shingles that were manufactured by the National Gypsum Company.
National Gypsum Company, in turn, manufactured asbestos cement siding shingles at plants in
Louisiana, Missouri and New Jersey. See id. at ¶ 16. At all times relevant to this case,
CertainTeed did not sell any asbestos cement siding shingles which were manufactured in
the State of New York. See id. at ¶ 17.
ARGUMENT
I.
CERTAINTEED IS NOT SUBJECT TO THE JURISDICTION OF
NEW YORK COURTS AND THIS CASE SHOULD THEREFORE BE
DISMISSED AGAINST CERTAINTEED
Plaintiffs must establish that the Court has jurisdiction over CertainTeed in this action.
Stewart v. Volkswagen of America, 81 N.Y.2d 203, 207, 597 N.Y.S.2d 612, 615 (1993); Lamarr
v. Klein, 315 N.Y.S.2d 695, 697 (1970). Specifically, Plaintiffs must establish that (i) New York
law confers jurisdiction over CertainTeed, and (ii) the exercise of jurisdiction over CertainTeed
comports with the Due Process Clause of the United States Constitution, which requires that any
exercise of jurisdiction be consistent with “traditional notions of fair play and substantial justice.”
Brown v. Lockheed Martin Corp., 814 F.3d 619, 625 (2d Cir. 2016), citing International Shoe Co.
v. Washington, 326 U.S. 310, 316 (1945); Sonera Holding B.V. v. Cukurova Holding A.S., 750
F.3d 221, 224 (2d Cir. 2014).
Plaintiffs cannot satisfy this burden; her claims against CertainTeed have nothing to do
with the state of New York. CertainTeed is a Delaware corporation with its corporate headquarters
and principal place of business in Pennsylvania. Plaintiffs’ claims against CertainTeed arise from
alleged exposure to CertainTeed cement siding shingles at various childhood homes in
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Massachusetts almost fifty years ago. On these facts, New York law does not confer jurisdiction
over CertainTeed. Even if New York law conferred jurisdiction over CertainTeed in this case,
exercising jurisdiction over CertainTeed would violate its due process rights guaranteed by the
U.S. Constitution.
A. CERTAINTEED IS NOT SUBJECT TO JURISDICTION UNDER
CPLR 301.
CPLR 301, which states that, “[a] court may exercise such jurisdiction over persons,
property, or status as might have been exercised heretofore,” was long understood to permit the
exercise of general, all-purpose, jurisdiction over foreign entities that were deemed “present” in
New York by virtue of their continuous business activity here. On the basis of such continuous
activity, a non-domiciliary could be sued in New York whether or not the claims related to or arose
out of any New York activity.
The U.S. Supreme Court eradicated such wide-reaching general jurisdiction in Goodyear
v. Dunlap Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011), and Daimler v. Bauman,
134 S. Ct. 746, 761-62 (2014). In Daimler, the Court held that, absent “exceptional
circumstances,” the Due Process Clause of the Fourteenth Amendment precludes a state from
exercising general jurisdiction over foreign corporations that are neither incorporated in, nor have
their principal places of business in, that state. 134 S. Ct. at 761. For a corporation, the “paradigm
forum for the exercise of general jurisdiction” is where the corporation “is fairly regarded as at
home,” Goodyear, 131 S. Ct. 2853-54, which is the corporation’s place of incorporation and
principal place of business. Daimler, 134 S. Ct. at 760-61. Indeed, just months ago, the Supreme
Court reaffirmed its holdings in Daimler, explaining that, “[o]ur precedent, however, explains that
the Fourteenth Amendment’s Due Process Clause does not permit a State to hale an out-of-state
corporation before its courts when the corporation is not ‘at home’ in the State and the episode-in-
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suit occurred elsewhere.” BNSF Ry. Co. v. Tyrell, 137 S. Ct. 1549, 1554, 198 L.Ed.2d 36 (2017).
The BNSF Court likewise reiterated that “the ‘paradigm’ forums in which a corporate defendant is
‘at home’…are the corporation's place of incorporation and its principal place of business.” Id. at
1558.
Thus, under the Supreme Court’s binding interpretation of the Due Process Clause, New
York courts may not exercise general jurisdiction pursuant to CPLR 301 over a defendant that is
neither incorporated in New York State nor has its principal place of business here. D & R Glob.
Selections, S.L. v. Pineiro, 128 A.D.3d 486, 487, 9 N.Y.S.3d 234 (1st Dep’t 2015), rev'd on other
grounds, D &R Glob. Selections, S.L. v. Bodega Olegario Falcon Pineiro, 29 N.Y.3d 292, 78
N.E.3d 1172 (2017). See also Davis v. Scottish Re Grp. Ltd., 46 Misc. 3d 1206(A), 9 N.Y.S.3d
592 (Sup. Ct. New York County 2014) (explaining “[a]s a matter of due process, in order for a
corporation to be amenable to general (all purpose) personal jurisdiction, suit must be brought in
either the place of incorporation or principal place of business of the company”); Brown, 814 F.3d
at 630 (holding that although Lockheed Martin had a physical presence in, and employed dozens
of workers in, Connecticut for many years, derived substantial revenue from Connecticut-based
operations, and is registered to do business in Connecticut, exercise of general jurisdiction over
Lockheed Martin in Connecticut would violate Due Process clause); Gucci America v. Weixing Li,
768 F.3d 122, 134-37 (2d Cir. 2014) (Chinese bank with principal place of business in China and
branches and employees in New York not subject to the general jurisdiction of New York courts).
Since CertainTeed is not “at home” in New York, it is not subject to the general jurisdiction
of New York courts under CPLR 301.
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B. CERTAINTEED IS NOT SUBJECT TO JURISDICTION UNDER
CPLR 302.
The United States Supreme Court has concretely held that, “[i]n order for a court to exercise
specific jurisdiction over a claim, there must be an ‘affiliation between the forum and underlying
controversy, principally [an] activity or an occurrence that takes place in the forum State’. When
there is no such connection, specific jurisdiction is lacking regardless of the extent of a defendant’s
unconnected activities in the State.” Bristol-Meyers Squibb Co. v. Superior Court of California,
San Francisco County, 137 S. Ct. 1773, 198 L.ED.2d 395 (2017). In this vein, CPLR 302(a), New
York’s long-arm statue, confers jurisdiction over a non-domiciliary for claims that arise out of:
(1) business activity in New York; or (2) a tortious act committed in New York; or (3) a tortious
act committed outside New York that causes injury to person or property in New York (except for
defamation), if the non-domiciliary (i) regularly does or solicits business, or engages in any other
persistent course of conduct, or derives substantial revenue from goods used or consumed or
services rendered, in the state, or (ii) expects or should reasonably expect the act to have
consequences in the state and derives substantial revenue from interstate or international
commerce; or (4) real property situated within the state.
Whether a court can properly assert long-arm jurisdiction under CPLR 302(a) hinges on a
two-part inquiry: (1) do the facts of the case fall within the scope of one or more provisions of
CPLR 302(a)?; and (2) assuming an affirmative answer to the first question, would asserting
jurisdiction comport with due process? Lamarca v. Pak Mor Mfg. Co., 95 N.Y.2d 210, 213-14,
713 N.Y.S.2d 304 (2000). Here, none of the provisions of CPLR 302 subject CertainTeed to the
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jurisdiction of the Court and, in any event, exercising jurisdiction over CertainTeed would violate
its due process rights. 1 0F
1. CERTAINTEED IS NOT SUBJECT TO JURISDICTION
UNDER CPLR 302(A)(1) OR (A)(4) BECAUSE PLAINTIFFS’
CLAIMS DO NOT ARISE FROM ANY OF CERTAINTEED’S
CONTACTS WITH NEW YORK.
Plaintiffs’ claims against CertainTeed do not “arise from” any activity by CertainTeed in
New York or any CertainTeed real property in New York. Plaintiffs’ claims instead that almost
fifty years ago, she was exposed to asbestos from CertainTeed cement siding shingles at various
childhood homes in Massachusetts from 1958 to 1970 while performing home renovation and
repair work with her father. See generally Ex. 5, Gable Tr. At all times relevant to this case,
CertainTeed, a Delaware corporation with a principal place of business in Malvern, Pennsylvania,
did not sell any asbestos-cement siding shingles manufactured in New York. See Friesz Aff. at
Ex. 6, Starczewski Aff. ¶¶ 6; 17. The Court of Appeals held long ago that in a tort action for
personal injuries, CPLR 302(a) does not confer jurisdiction where plaintiff’s injury occurred
outside New York and did not arise from an act or activity in New York. McGowan v. Smith, 52
N.Y.2d 268, 272, 437 N.Y.S.2d 643, 645 (1981) (“[e]ssential to the maintenance of a suit against
a nondomiciliary under CPLR 302 (subd [a], par 1) is the existence of some articulable nexus
between the business transacted and the cause of action sued upon …”). Indeed, this Court recently
decided that personal jurisdiction under CPLR 302(a)(1) was lacking with respect to a similarly
situated defendant, likewise incorporated in Delaware with an out-of-state principal place of
business, to whose product plaintiff encountered only outside of New York. Trumbull v. Adience,
1
See Walden v. Fiore, 134 S. Ct. 1115 (2014) (“the inquiry whether a forum state may assert specific jurisdiction over
a nonresident defendant ‘focuses on the relationship among the defendant, the forum, and the litigation.’ For a State
to exercise jurisdictionconsistent with due process, the defendant's suit-related conduct must create a substantial
connection with the forum State”) (citations omitted).
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Inc., et al., Index No. 190084/2016 (Sup. Ct. N.Y. County, March 6, 2017) (Moulton, J.) (Friesz
Aff. Ex. 7).
Finally, CPLR 302(a)(4) likewise is inapplicable because Plaintiffs’ claims do not arise
from any property CertainTeed may own in New York. Lancaster v. Colonial Motor Freight, 177
AD 2d 152, 581 NYS 2d 283 (1st Dep’t 1992).
2. CERTAINTEED IS NOT SUBJECT TO JURISDICTION
UNDER CPLR 302(A)(2) BECAUSE IT DID NOT COMMIT A
TORTIOUS ACT IN NEW YORK.
The “tortious act” referred to in CPLR 302(a)(2) is the manufacture of the allegedly
injurious product. Feathers v. McLucas, 15 N.Y.2d 443. 261 N.Y.S.2d 8 (1965). As noted, at all
times relevant to this case, CertainTeed did not sell any asbestos cement siding shingles
manufactured in New York. See Friesz Aff. Ex. 6, Starczewski Aff, at ¶¶ 14-17. Thus, CertainTeed
did not commit a tortious act in New York. Id. at ¶¶ 14-15. In fact, even if it could be said that
in a product exposure case, the tortious act occurs where the alleged exposure occurred, here the
proper venue would be Massachusetts. This Court has recently made clear that no jurisdiction
exists under CPLR 302(a)(2) where plaintiff alleges exposure to defendant’s product “entirely
outside of New York.” Trumbull, 190084/2016 (March 6, 2017) (Moulton, J.) (Friesz Aff. Ex. 7)
at p. 9. CPLR 302(a)(2) does not confer jurisdiction over CertainTeed.
3. CERTAINTEED IS NOT SUBJECT TO JURISDICTION
UNDER CPLR 302(A)(3) BECAUSE THE ALLEGED INJURY
DID NOT OCCUR IN NEW YORK.
To exercise jurisdiction under CPLR 302(a)(3), there has to be a tort committed outside
New York that injured plaintiff in New York. See Benson v. Syntex Laboratories, Inc., 161 Misc.
2d 822, 614 N.Y.S.2d 990 (Sup. Ct. N.Y. Co. 1994) citing Fantis Foods, Inc. v. Standard
Importing, 49 N.Y.2d 317, 325 (1980). The place of injury is where the alleged exposure occurred.
See Kramer v. Hotel Los Monteros S.A., 57 A.D.2d 756, 94 N.Y.S. 2d 415 (1st Dep't 1977) (where
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tourist from New York was bitten by dog in hotel in Spain and developed septicemia back in New
York, hotel was not subject to jurisdiction of New York courts under CPLR 302(a)(3); “the injury
. . . occurred in Spain even though its most severe medical result . . . did not manifest itself until
the plaintiff . . . returned to New York”); Hardware v. Ardowork Corp., 117 A.D.3d 561986 N.Y.S.
2d 445, (1st Dep’t 2014) (where child, domiciled and living in New York, was exposed to lead
paint in Connecticut, situs of the injury was Connecticut; thus, defendant Connecticut property
owner was not subject to jurisdiction in New York under CPLR 302(a)(3)).
Assuming, strictly for the sake of argument, that CertainTeed committed a tortious act
against Plaintiffs’ decedent somewhere outside of New York, under New York law, Ms. Gable’s
alleged injury from CertainTeed siding shingles occurred in Massachusetts—the place of her
alleged exposure. Indeed, this Court’s recent decision in the Trumbull case makes further clear that
Ms. Gable’s alleged exposure to asbestos-containing siding shingles in Massachusetts does not
constitute an “injury to person or property within the state.” Trumbull, 190084/2016 (March 6,
2017) (Moulton, J.) (Friesz Aff. Ex. 7) at p. 10. CPLR 302(a)(3) does not confer jurisdiction over
CertainTeed.
In sum, CertainTeed is not subject to the jurisdiction of the Court under CPLR 302(a).
C. CERTAINTEED IS NOT SUBJECT TO THE GENERAL
JURISDICTION OF NEW YORK COURTS BY VIRTUE OF ITS
REGISTRATION TO DO BUSINESS IN THE STATE.
This case involves a Delaware corporate defendant headquartered in Pennsylvania
(CertainTeed), and alleged tortious conduct in Massachusetts. A litany of recent New York
decisions, discussed infra, have made clear that this case cannot—consistent with the Due Process
Clause—be pursued against CertainTeed in a New York court, regardless of CertainTeed’s
registration to do business in the state.
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CertainTeed is registered to do business in New York under N.Y. Bus. Corp. Law §1301.
This statute, which is set out in full in the margin, contains no express language stating that
registration to do business constitutes consent to the general jurisdiction of the New York courts. 2 1F
Whatever the law may have been prior to Daimler and Goodyear, those decisions and other cases
decided after them make plain that CertainTeed’s New York registration is not by itself sufficient
to confer general jurisdiction over the company.
This Court, in a decision issued just weeks ago, held that a foreign corporation does not
consent to the jurisdiction of New York’s Courts merely by merely registering to do business here.
Sean Snowdale et al. v. A.O . Smith Water Products et al., Index No. 190202/2015 (Sup. Ct. New
York County September 7, 2017) (Billings, J.) (Friesz Aff. Ex 8). As Your Honor explained in
Snowdale:
2
New York Bus. Corp. Law §1301, entitled “Authorization of foreign corporations,” states:
(a) A foreign corporation shall not do business in this state until it has been authorized to do so as provided in
this article.A foreign corporation may be authorized to do in this state any business which may be done lawfully
in this state by a domestic corporation, to the extent that it is authorized to do such business in the jurisdiction of
its incorporation, but no other business.
(b) Without excluding other activities which may not constitute doing business in this state, a foreign corporation
shall not be considered to be doing business in this state, for the purposes of this chapter, by reason of carrying
on in this stateany one or more of the following activities: (1) Maintaining or defending any action or
proceeding, whether judicial,administrative, arbitrative or otherwise, or effecting settlement thereof or the
settlement of claims or disputes. (2)Holding meetings of its directors or its shareholders. (3)Maintaining bank
accounts. (4) Maintaining offices or agencies only for the transfer, exchange and registration of its securities, or
appointing and maintaining trustees or depositaries with relation to its securities.
(c) The specification in paragraph (b) does not establish a standard for activities which may subject a foreign
corporation to service of process under this chapter or any other statute of this state.
(d) A foreign corporation whose corporate name is not acceptable for authorization pursuant to sections 301 and
302 of this chapter, may submit in its application for authority pursuant to section 1304 of this chapter, a fictitious
name under which it shall do business in this state. A fictitious name submitted pursuant to this section shall be
subject to the provisions of subparagraphs (2) through (9) of paragraph (a) of section 301 and 302 of this chapter.
A foreign corporation authorized to do business in this state under a fictitious name pursuant to this section, shall
use such fictitious name in all of its dealings with the secretary of state and in the conduct of its business in this
state.
The provisions of section one hundred thirty of the general business law shall not apply to any fictitious name filed
by a foreign corporation pursuant to this section, and a filing under section one hundred thirty of the general business
law shall not constitute the adoption of a fictitious name.
-9-
14 of 22
FILED: NEW YORK COUNTY CLERK 10/17/2017 03:52 PM INDEX NO. 190235/2016
NYSCEF DOC. NO. 123 RECEIVED NYSCEF: 10/17/2017
when an out of state corporation registers to conduct business in New York,
you construe that as consent. It's consent to conduct business in New York.
Well, before Daimler doing business in New York was a basis for personal
jurisdiction. After Daimler, it's not, so I think you have to look at the law
on consent in that context.
Id. at p. 26.
Likewise, very recently, the Supreme Court, New York County in Mischel v. Safe Haven
Enters., LLC, applied Daimler, Goodyear and Brown to explain that a company’s registration to
do business in New York State does not constitute its consent to the general jurisdiction of New
York Courts. The Mischel Court offered the following discussion and recitation of law in New
York pre-Daimler and post-Daimler:
Prior to the Supreme Court ruling in Daimler AG v Bauman (134 S Ct 746
[2014]), the courts of this state held that a foreign corporation is deemed to have
consented to personal jurisdiction over it when it registers to do business in New
York and appoints the Secretary of State to receive process for it pursuant to
Business Corporation Law §§ 304 and 13-04 (Bagdon v Philadelphia & Reading
Coal & Iron Co., 217 NY 432, 436-37 [1916]; Doubet LLC v Trustees of
Columbia Univ. in the City of N.Y., 99 AD3d 433 [1st Dept 2012]; Muollo v
Crestwood Village, Inc., 155 AD2d 420 [2nd Dept 1989]; Augsbury Corp.
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Ruling
K. QUILLIN VS. NOELLE BECKER MORENO ET AL
Jul 10, 2024 |
CGC24611734
Matter on the Law & Motion calendar for Wednesday, July 10, 2024, Line 11. DEFENDANT NOELLE MORENO's MOTION TO STRIKE COMPLAINT. Off calendar for noncompliance with Local Rule 2.7(B) (courtesy copies). The motion may be re-set for a Mon.-Thurs. after July 24, with papers to bear new hearing date. For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/RBU)
Ruling
ARMEN BEGOYAN VS CITY OF LOS ANGELES, ET AL.
Jul 11, 2024 |
21STCV34525
Case Number:
21STCV34525
Hearing Date:
July 11, 2024
Dept:
32
PLEASE NOTE
:
Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.
If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at
sscdept32@lacourt.org
indicating that partys intention to submit.
The email shall include the case number, date and time of the hearing, counsels contact information (if applicable), and the identity of the party submitting on this tentative ruling.
If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.
If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.
Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court
.
TENTATIVE RULING
DEPT
:
32
HEARING DATE
:
July 11, 2024
CASE NUMBER
:
21STCV34525
MOTIONS
:
Motion for Terminating Sanctions
MOVING PARTY:
Defendant City of Los Angeles
OPPOSING PARTY:
None
BACKGROUND
Defendant City of Los Angeles (
Defendant) moves for terminating sanctions against Plaintiff
Armen Begoyan (Plaintiff) for failure to comply with the Courts April 26, 2024 discovery order. Defendant seeks to dismiss the entire action. No opposition has been filed.
LEGAL STANDARD
To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose&sanctions against anyone engaging in conduct that is a misuse of the discovery process. (Code Civ. Proc. section 2023.030.) The court may impose a terminating sanction for misuse of the discovery process by any of the following: (1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process; (2) An order staying further proceedings by that party until an order for discovery is obeyed; (3) An order dismissing the action, or any part of the action, of that party; (4) An order rendering a judgment by default against that party. (Code Civ. Proc. § 2023.030(d).)
Failing to respond or to submit to an authorized method of discovery, or
disobeying a court order to provide discovery,
constitutes a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (d), (g).)
The trial court may order a terminating sanction for discovery abuse after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery. (
Los Defensores, Inc. v. Gomez
(2014) 223 Cal.App.4th 377, 390, quoting
Lang v. Hochman
(2000) 77 Cal.App.4th 1225, 1246.)
Generally, [a] decision to order terminating sanctions should not be made lightly.
But where a violation is 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. (
Los Defensores, supra
, 223 Cal. App. 4th at p. 390 [citation omitted].)
Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders. (
Los Defensores, supra
, 223 Cal.App.4th at p. 390 citing
Lang, supra
, 77 Cal.App.4th at pp. 1244-1246 [discussing cases]; see, e.g.,
Collisson & Kaplan v. Hartunian
(1994) 21 Cal.App.4th 1611, 1617-1622 [terminating sanctions imposed (by striking the defendants Answer and subsequently granting default judgment) after defendants failed to comply with one court order to produce discovery];
Laguna Auto Body v. Farmers Ins. Exchange
(1991) 231 Cal.App.3d 481, 491, disapproved on other grounds in
Garcia v. McCutchen
(1997) 16 Cal.4th 469, 478, n. 4 [terminating sanctions imposed against the plaintiff for failing to comply with a discovery order and for violating various discovery statutes].)
If a party . . . fails to obey an order compelling answers [to interrogatories or 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 (commencing with Section 2023.010). (Code Civ. Proc. §§ 2030.290(c); 2031.300(c).)
DISCUSSION
Written discovery was originally served on Plaintiff on March 1, 2023. (Kahramanian Decl. ¶ 2.) On September 21, 2023 and January 11, 2024, Defendants counsel emailed Plaintiffs counsel requesting responses but received no response. (
Id.
¶ 3.)
On April 26, 2024, the Court granted
Defendants unopposed motion to compel Plaintiffs responses to Demand for Production of Documents, Set One, Special Interrogatories, Set One, and Form Interrogatories, Set One. Plaintiff was ordered to provide verified responses, without objections, within 10 days. (Min. Order, 4/26/24.) The Court also imposed $700.00 in monetary sanctions against Plaintiff and his counsel of record.
On May 2, 2024, Defendant filed and served electronic notice of the ruling on Plaintiffs counsel. Defendant contends that no responses have been served complying with the Courts order. (Kahramanian Decl. ¶ 4.) Plaintiff has not filed an opposition to this motion.
Therefore, it appears that the discovery was first served in March 2023, and the motion to compel was granted on April 26, 2024. Throughout this time, Defendant sought to obtain responses through informal ways before ultimately obtaining an order to compel. The delay in time also demonstrates that Defendant has been prevented from mounting a defense against this case. Considering the above, the fact Plaintiff did not oppose this motion nor the previous motion to compel, and monetary sanctions have been ineffective, the Court finds Plaintiffs actions to be willful. Therefore, the motion for terminating sanctions is granted.
CONCLUSION
Therefore, Defendant
City of Los Angeles
motion for terminating sanctions is GRANTED. The only remaining defendants are Doe Defendants who have not been named or served, and therefore t
he Court orders the complaint dismissed in its entirety.
If Defendant moves to dismiss the cross-complaint at the hearing on this motion, then the Final Status Conference and Jury Trial dates will be advanced and vacated.
Defendant shall provide notice of the Courts ruling and file a proof of service of such.
Ruling
Gilbert Hernandez vs. In-Shape Health Clubs, LLC
Jul 11, 2024 |
20CV-02521
20CV-02521 Gilbert Hernandez v. In-Shape Health Clubs LLC
Trial Settng Conference
Appearance required. Remote appearances are permitted. Parties who wish to appear
remotely must contact the clerk of the court at (209) 725-4111 to arrange for a remote
appearance. Appear to address the status of case following the unsuccessful mediation
and whether it is time to set this matter for trial.
Ruling
SOCORRO ALEGRIA VS ALTAMED HEALTH SERVICES CORPORATION, A CALIFORNIA CORPORATION, ET AL.
Jul 11, 2024 |
24PSCV00032
Case Number:
24PSCV00032
Hearing Date:
July 11, 2024
Dept:
K
1.
Defendant AltaMed Health Services Corporations Motion for Judgment on the Pleadings is summarily GRANTED in part (i.e., as to the fifth, sixth and tenth causes of action) and otherwise DENIED in part (i.e., as to the eighth and ninth causes of action).
2.
Defendant AltaMed Health Services Corporations Motion to Strike is DENIED as MOOT.
Background
Plaintiff Socorro Alegria (Plaintiff) alleges as follows: Plaintiff was sexually assaulted during her March 22, 2023 medical imaging appointment. On January 3, 2024, Plaintiff filed a complaint, asserting causes of action against AltaMed Health Services Corporation (AltaMed), Jose Luis Sanchez and Does 1-20 for:
1.
Negligent Hiring Retention, Supervision and Failure to Terminate (v. AltaMed only)
2.
Common Law Assault (v. Sanchez only)
3.
Common Law Battery (v. Sanchez only)
4.
Sexual Battery in Violation of Civil Code § 1708.5 (v. Sanchez only)
5.
Violation of Civil Code § 51.7
6.
Sexual Harassment in Violation of Civil Code § 51.9
7.
Intentional Infliction of Emotional Distress (v. Sanchez only)
8.
Negligent Infliction of Emotional Distress
9.
Negligence (v. AltaMed only)
10.
Violation of the Tom Bane Civil Rights Act A Case Management Conference is set for July 11, 2024.
1.
Judgment on the Pleadings
Legal Standard
The rules governing demurrers are generally applicable to a motion for judgment on the pleadings. (
Cloud v. Northrop Grumman Corp.
(1998) 67 Cal.App.4th 995, 999; Code Civ. Proc., § 438, subd. (d) [The grounds for motion. . . shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. Where the motion is based on a matter of which the court may take judicial notice. . ., the matter shall be specified in the notice of motion, or in the supporting points and authorities, except as the court may otherwise permit].)
A motion by a plaintiff may only be made on the grounds that the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint. (Code Civ. Proc., § 438, subd. (c)(1)(A).) A motion by a defendant may only be made on the grounds that (1) [t]he court has no jurisdiction of the subject of the cause of action alleged in the complaint or (2) [t]he complaint does not state facts sufficient to constitute a cause of action against that defendant. (Code Civ. Proc., § 438, subd. (c).)
Although a nonstatutory motion may be made at any time either prior to the trial or at the trial itself (
Stoops v. Abbassi
(2002) 100 Cal.App.4th 644, 650 [quotation marks and citation omitted]), a statutory motion cannot be made after entry of a pretrial conference order or 30 days before the initial trial date, whichever is later, unless the court otherwise permits. (Code Civ. Proc., § 438, subd. (e).)
Discussion
AltaMed moves the court, pursuant to Code of Civil Procedure § 438, for judgment on the pleadings as to the fifth, sixth, and eighth through tenth (i.e., for
Violation of Civil Code § 51.7, Sexual Harassment in Violation of Civil Code § 51.9, Negligent Infliction of Emotional Distress, Negligence and Violation of the Tom Bane Civil Rights Act, respectively)
causes of action in Plaintiffs complaint, on the basis that they each fail to state facts sufficient to constitute causes of action.
At the outset, Plaintiff represents that she agrees to dismiss her fifth, sixth and tenth causes of action, without prejudice (Opp., 1:26-2:2); accordingly, in the event a Request for Dismissal is not on file by the time of the hearing, the court will summarily grant the motion in this regard.
The courts following analysis, then, is limited to Plaintiffs eighth and ninth causes of action, for Negligent Infliction of Emotional Distress and Negligence, respectively:
AltaMed asserts that these causes of action fail because it cannot be held vicariously liable for an alleged sexual assault by its employee. [A]n employer is vicariously liable for the torts of its employees committed within the scope of the employment. (
Lisa M. v. Henry Mayo Newhall Memorial Hospital
(1995) 12 Cal.4th 291, 296.) However, [a]n
employer will not be held liable for an assault or other intentional tort that did not have a causal nexus to the employee's work. (
Id.
at 297).
The court construes Plaintiffs eighth and ninth causes of action as sounding in direct negligence, rather than vicarious liability. Further, while AltaMed contends that these causes of action are surplusage, this argument was raised for the first time in the reply; as such, it is disregarded. The motion is denied in this regard.
2.
Motion to Strike
AltaMed moves the court for an order striking out the following language from Plaintiffs complaint:
1.
Page 12, paragraph 68, lines 6-12;
2.
Page 13, paragraph 79, lines 9-15;
3.
Page 16, paragraph 102, lines 18-24;
4.
Page 17, paragraph 7, line 13;
5.
Page 17, paragraph 9, line 15;
6.
Page 17, paragraph 10, line 16. AltaMeds request is denied as moot. All of the allegations AltaMed seeks to have stricken pertain to the fifth, sixth and tenth causes of action, which Plaintiff has agreed to dismiss.
Ruling
Thompson, Harry Fayne III vs. Rose, Steven Leon et al
Jul 22, 2024 |
S-CV-0052451
S-CV-0052451 Thompson, Harry Fayne III vs. Rose, Steven Leon et al
No appearance required. CMC is continued to 10/14/24 at 2pm in Dept. 6.
Complaint is not at issue - Need responsive pleading, default or dismissal as to
Defendant(s): Grossman, Marilyn Joy
Additionally, no proof of service has been filed as to Defendant(s): Rose, Steven
Leon
Ruling
TODD BERTRANG, ET AL. VS IVORY HOLDINGS, LLC, A LIMITED LIABILITY COMPANY, ET AL.
Jul 09, 2024 |
21STCV42736
Case Number:
21STCV42736
Hearing Date:
July 9, 2024
Dept:
S25 Procedural Background Plaintiffs, Todd Bertrang (Bertrang) and Ophie Beltran (Beltran) (collectively, Plaintiffs) sued Defendants, Lido Sailing Club, Inc. (Lido), Ivory Holdings, LLC (Ivory), and Scott Vollero (Vollero) based on injuries Plaintiffs allege they sustained from Bertrangs exposure to hazardous chemicals. Plaintiffs filed their original complaint on November 18, 2021, and filed a First Amended Complaint (FAC) on May 4, 2022. Notably, Plaintiffs did not serve any party prior to filing their FAC, and no party responded to the original complaint. On September 8, 2022, the Court sustained Lido Sailing Club, LLCs demurrer to the FAC with leave to amend. (September 8, 2022 Minute Order.) On September 30, 2022, Plaintiffs filed their Second Amended Complaint (SAC). On October 5, 2022, Lido filed a demurrer to the SAC. Shortly thereafter, the personal injury hub court found the case complicated and transferred it to Long Beach for all further proceedings. On January 12, 2023, Lido re-filed its demurrer to the SAC in Department S27. On June 27, 2023, the Court continued the hearing on the demurrer, finding the parties had not adequately met and conferred prior to filing their papers. On July 27, 2023, the Court sustained the demurrer with leave to amend. On September 20, 2023, rather than amending the SAC, Plaintiffs dismissed Lido from the case. On December 21, 2023, Defendants Ivory Holdings and Vollero filed a demurrer with the motion to strike portions of the SAC. On January 23, 2024, the Court sustained the demurrer with leave to 20 days amend as to the NIED cause of action and alter ego liability cause of action and overruled the strict liability for ultrahazardous activity cause of action, the violation of Health and Safety Code, § 25359.7, cause of action and the IIED cause of action; the Court also granted the motion to strike without leave to amend as to punitive damages and related allegations. (January 23, 2024 Minute Order.) On April 24, 2024, Plaintiffs filed a Third Amended Complaint (TAC) more than two months after the Courts January 23 order. Meet and Confer Defendant Volleros counsel states that he sent a meet and confer letter to Plaintiffs counsel on May 17, 2024 detailing issues with the TAC and his availability for a telephonic meet and confer at least 5 days prior to filing the instant motions. (Rasmussen Decl.1, ¶ 5, Exh. B.) Defendant Volleros counsel states that Plaintiffs counsel did not respond to the meet and confer attempt. (Id., at ¶ 6.) In opposition, Plaintiffs counsel argues Defendant Volleros counsel failed to meet and confer because the issues were not discussed in person or by telephone as required under Code Civ. Proc., §§ 430.41, 435.5. Notwithstanding the parties conflicting ideas of meet and confer, it is very likely an informal attempt to resolve the matter would have been unsuccessful. Analysis 1. Delay in Filing of Third Amended Complaint Code Civ. Proc., § 472b, states that: [w] hen a demurrer to any pleading is sustained or overruled, and time to amend or answer is given, the time so given runs from the service of notice of the decision or order, unless the notice is waived in open court, and the waiver entered in the minutes. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2024) ¶ 7:145; Cano v. Glover (2006) 143 Cal.App.4th 326, 329-330.) After expiration of the time in which a pleading can be amended as a matter of course, the pleading can only be amended by obtaining the permission of the court. (Leader v. Health Indus. of Am., Inc. (2001) 89 Cal. App. 4th 603, 613.) While a court has discretion to require a noticed motion before permitting a plaintiff to file an amended complaint late, a court also has the discretion to accept a filing without a noticed motion. (Harlan v. Dep't of Transportation (2005) 132 Cal. App. 4th 868, 873.) The Court exercises its discretion and accepts Plaintiffs untimely filed Third Amended Complaint without a noticed motion. 2. Second Amended Complaint Holding (Alter Ego) On January 23, 2024, Judge Mark Kim sustained Defendant Volleros Demurrer to the Second Amended Complaint with leave to amend. Judge Kim ruled: All claims against Volero are plead on an alter ego theory. Plaintiffs alter ego allegations are found at ¶6 of the SAC, and merely allege that each defendant was acting as the alter ego of each other defendant. Relying on Rutherford Holdings, LLC v. Playa del Rey (2014) 223 Cal.App. 221, 236, Judge Kim held: Plaintiffs herein failed to allege any of the ultimate facts showing alter ego liability. They failed to allege unity of interest, domination and control, inadequate capitalization, etc. Voleros demurrer is therefore sustained with leave to amend. Plaintiffs must allege ultimate facts showing imposition of liability against Volero would be proper. (See January 23, 2024 Minute Order, Legal Standard on Demurrer, Alter Ego Liability, 3(h)). 3. Demurrer to the Third Amended Complaint (Alter Ego) A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing partys pleading. It is error for the trial court to sustain a demurrer if the plaintiff has stated a cause of action under any possible legal theory, and it is an abuse of discretion for the court to sustain a demurrer without leave to amend if the plaintiff has shown there is a reasonable possibility a defect can be cured by amendment. California Logistics, Inc. v. State of California (2008) 161 Cal. App. 4th 242, 247. The burden is on the complainant to show in what manner and how that amendment will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Plaintiffs allegations of alter ego in the TAC are found at ¶ 3 and 6. These allegations are identical to the alter ego allegations found at ¶ 3 and ¶6 of the SAC. No additional facts or allegations have been added by Plaintiffs. As discussed, Judge Kim found those allegations deficient as Plaintiff failed to allege any of the ultimate facts showing alter ego liability and failed to allege unity of interest, domination and control, inadequate capitalization. (January 23, 2024 Minute Order). In sum, Plaintiffs completely failed to amend or modify their operative pleading in any manner or in compliance with Judge Kims ruling. In Plaintiffs opposition, Plaintiffs request leave to amend by suggesting three new facts, previously unknown, support the theory of alter ego between Vollero and Ivory Holdings. These facts are: (1) and (2) on August 16, 2016, two separate Deeds of Trust were recorded against the subject premises with Vollero as the Beneficiary and (3) Vollero, as an individual, performed the alleged remediation of the toxic chemicals which are alleged to have harmed Plaintiffs. Assuming the new facts found in Plaintiffs Opposition are true, Plaintiffs have not met their burden demonstrating how or in what manner these new allegations support of finding that a reasonable possibility exist for Plaintiffs to cure the defects and successfully pled a theory of alter ego. (Reeder v. Specialized Loan Servicing LLC (2020) 52 Cal.App.5th 795, 805.) These additional facts show no connection between Vollero and Ivory Holdings. Even with the inclusion of those three allegations, Plaintiffs operative pleading would fail to allege any of the ultimate facts showing an alter ego theory as set forth in Rutherford (e.g. allegations of unity of interest, domination and control, inadequate capitalization). 4. Ruling The Court sustains Defendant Volleros Demurrer without leave to amend. Defendant Volleros motion to strike is now moot.
Ruling
Luis Kutz, et al vs Jennifer Fribourgh, et al
Jul 11, 2024 |
23CV01711
23CV01711
KUTZ et al. v. FRIBOURGH et al.
(UNOPPOSED) PLAINTIFFS’ MOTIONS TO BE RELIEVED
The unopposed motions are denied without prejudice. Counsel must refile to reflect
correct upcoming hearing dates in the declarations and proposed orders.
Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal order
incorporating, verbatim, the language of any tentative ruling – or attaching and incorporating the
tentative by reference - or an order consistent with the announced ruling of the Court, in
accordance with California Rule of Court 3.1312. Such proposed order is required even if the
prevailing party submitted a proposed order prior to the hearing (unless the tentative is
simply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition of
sanctions following an order to show cause hearing, if a proposed order is not timely filed.
Page 1 of 1
Ruling
Dryden, Donna vs Tri Counties Bank
Jul 10, 2024 |
23CV03115
23CV03115 Dryden, Donna et al. v. Tri Counties Bank
EVENT: Plaintiffs’ Motion to Consolidate and Appoint Interim Class Counsel
Plaintiffs’ Motion to Consolidate and Appoint Interim Class Counsel is GRANTED. Defendant
shall file a responsive pleading within 60 days of the date of this order. The Court will sign the
proposed order with the noted modification.
Document
Patrick Strickland v. W.I.P. Club, Inc., Barry Mullineaux, Collective Hardware, Inc., John Bakhishi, Lina Kay, Hirukuni Sai, John C. Best, Frank Porco, Merlin Bobb-Willis, 150 Rft Varick Corp., 150 Rft Varick Basement Llc, W. & M. Operating, L.L.C., Aubrey Graham Drake a/k/a DRAKE, Allstar Security & Consulting, Inc., Christopher Maurice Brown a/k/a CHRIS BROWN
Apr 08, 2013 |
Anil Singh
|
Tort |
Tort |
153185/2013
Document
Melania Rodriguez and RYAN LUNT, as Parents and Natural Guardians of Z.L, Melania Rodriguez, Ryan Lunt Individually v. Nicholas James Buffin M.D., Valerie Lewis-Morris M.D., Emily Schmidt-Beuchat M.D., Hope S. Langer M.D., Youyin Choy M.D., Lois Brustman M.D., Susan Rothenberg M.D., Helaine Worrell M.D., Mount Sinai West, West Care Medical, P.C.,, Faculty Practice Associates-Mount Sinai Hospital,, Midtown Ob/Gyn
Mar 15, 2021 |
John J. Kelley
|
Torts - Medical, Dental, or Podiatrist Malpractice |
Torts - Medical, Dental, or Podiatrist Malpractice |
805086/2021