On February 26, 2019 a Motion-Secondary was filed involving a dispute between Torres, Christopher, Torres, Melissa, and Barnes Group Inc., As Successor By Acquisition Of Kar Products, Inc., A, Barnes Group Inc. As Successor By Acquisition Of Kar Products,Llc, B C Stocking Distributing, A California Corporation, B'Laster Llc, Chevron Corporation, A Delaware Corporation, Chevron U.S.A. Inc, Chevron U.S.A. Inc., Crc Industries, Inc. Which Will Do Businessin California As Pennsylvania Crc Industrie, Dap Products Inc., A Delaware Corporation, Does 3-100, Husqvarna Professional Products, Inc., A Delaware Corporation, Kern Oil & Refining Co., A California Corporation, Lighthouse For The Blind, Midwest Motor Supply Co., An Ohio Corporation, Nch Corporation, A Delaware Corporation, Oatey Co., An Ohio Corporation, Pennzoil-Quaker State Company, Petro Source Investments, Inc. A Delaware Corporation, Ppg Industries, Inc. A Pennsylvania Corporation, P-T Technologies, Inc., A Florida Corporation, Quaker State Corporation, As Successor By Acquistion Of Westland Oil Company, Inc., A, Safety-Kleen Systems, Inc., A Wisconsin Corporation, Union Oil Company Of California, A California Corporation, Wd-40 Company, A Delaware Corporation, for Product Liability Unlimited in the District Court of San Bernardino County.
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ORBGHNAL LEWIS BRISBOIS BISGAARD & SMITH LLP PATRICK J. FOLEY, SB# 180391 E-Mail: Patrick.Foley@lewisbrisbois.com DAVID M. UCHlDA. SB# 232789 E-Mail: David.Uchida@lewisbrisbois.com 633 West 51h Street. Suite 4000 Los Angeles, California 90071 Telephone: 213.250.1800 Facsimile: 213.250.7900 \DNQQMBWNH HARRIS BEACH PLLC DANIEL R. STRECKER (Pro Hac Vice Admission) n E-Mail: dstrecker@harrisbeach.com J 100 Wall Street New York, New York 10005 Telephone: 212.687.0100 a(w" Facsimile: 212.687.0659 Attorneys for Defendant SAFETY-KLEEN SYSTEMS. INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN BERNARDINO, JUSTICE CENTER CHRISTOPHER TORRES and MELISSA CASE NO. CIVDSI906092 TORRES, G‘ax‘v‘fl [Assigned for purposes to Hon. David E. all Plaintiffs, Driscoll Dept. 8-22] vs. DEFENDANT SAFETY-KLEEN SYSTEMS, OBJECTIONS TO INC.’S BARNES GROUP [NC., et aL, EVIDENCE OPPOSITION TO IN SAFETY-KLEEN’S MOTION [RAPHAEL Defendants. METZGER DECLARATION] NNNNNNNNNh—t—t—m—Hmm—H Date: September l4, 2023 Time: 8:30 a.m. “\IOKUIADJNHOOwQOUIAuN—G Dept.: S-22 Action Filed: February 26, 201 9 Trial Date: May l3. 2024 [Filed Concurrently with Reply in Further Support offhe Motionfor Summary Adjudication; Separate Statement of Undisputed Facts; Declaration ofDavid M. Uchida] TO THE COURT, ALL PARTIES, AND THEIR COUNSEL OF RECORD: Pursuant t0 3. 1 352 and 3. l 354 of the California Rules ofCourt and 437C ofthe California § Code of Civil Procedure. defendant/moving party SAFETY-KLEEN SYSTEMS, INC. (“Safety- LEWIS BRISBOIS 129141913.1 1 DEFENDANT SAFETY-KLEEN SYSTEMS, OBJECTIONS TO EVIDENCE IN OPPOSITION TO MOTION INC.‘S aMHllP FOR SUMMARY ADJUDICATION [RAPHAEL METZGER DECLARATION] Kleen"), hereby objects to portions ofthe Declaration of Raphael Metzger and the exhibits attached thereto submitted in opposition t0 Safety-Kleen‘s motion for summary adjudication. Safety—Kleen requests the Court rule upon the following objections at the hearing 0f the motion: Objection No. 1: OWQQUI8MN— Safety-Kleen objects to Paragraph 4: “Attached hereto as Exhibit ‘A’ is a true and correct copy 0f excerpts of the deposition of Jonathan R. Steele. Safety-Kleen’s Manager of Health and Safety, which l took on May 20. 1998 from the case 0f Talley v. Sqfety-Kleen in Chicago. Illinois." Grounds for Objection No. l: Inadmissible hearsay not subject to any exception. Pursuant to Berroteran v. Superior Court (2022) 12 Ca1.5th 867 and Evidence Code Section 1291 this discovery , deposition is presumptively inadmissible hearsay. for which it is Plaintiffs‘ burden to establish an exception. (See also Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755. 76] (“Evidence in opposition Io a summaryjudgment motion must be admissible. just like at trial. Only admissible evidence is liberally construed in deciding whether there is a triable issue.").) Plaintiffs cannot because the party t0 Talley (Safety-Kleen Corporation) did not have the right and opportunity t0 cross-examine the deponents with an interest and motive similar to what Defendant Safety-Kleen Systems. Inc. (“Safety-Kleen“ or "Safety-Kleen Systems"). will have at this trial. so it is inadmissible pursuant to Berroteran/Section 1291. Plaintiffs cannot establish another exception. For example, Evidence Code sections 1220 and I222 do not override the more specific provisions 0f Section 1291. (See Muller v. Fresno Community Hospital Medical Center (2009) 172 & Cal.App.4th 887. 906 ("It is well settled‘ also. that a general provision is controlled by one that is special. the latter being treated as an exception to the former. A specific provision relating to a particular subject will govern in respect t0 that subject. as against a general provision. although the latter. standing alone. would be broad enough t0 include the subject to which the more particular provision relates"); see also Rose v. State (1942) 19 Ca].2d 713‘ 723-724.) Furthermore. it is a matter 0f public record that this Defendant. Safety-Kleen Systems. Inc.. is NNNNNNNNN—H—I—t—H—H—fl a distinct entity and party from Safety-Kleen Corporation, which was the employer 0r fomer employer 0f the deponents in WQOUIADJN—GNDWVOUIAMN—C Talley. was successor and debtor in possession that emerged from this bankruptcy in fact the in 2003. Therefore. statements made by employees or representatives of Safety-Kleen Corporation are not binding. (See, e.g.. Cal. Concrere C0. v. Beverly Hills Sav. & Loan Ass'n (I989) 215 Cal. App. 3d 260. 267 (reorganization results in a new entity. “separate and distinct" from the old); Three Rivers Confections, LLC v. Warman (3d Cir. 2016) 660 F. App‘x 103, 109 (“statements made by a predecessor in interest or employees ofa predecessor are not admissible under Rule 80] (d)(2)(A)“).) Irrelevant, as the alleged disease in Talleywas AML allegedly caused by benzene, and Plaintiffs' claims action relate to kidney cancer allegedly caused in this by mineral spirits, perchloroethylene. and trichloroethylene. (Evid. Code §§ 210. 350-351.) Objection No. 2: LEWIS 1291419131 2 DEFENDANT SAFETY-KLEEN SYSTEMS, OBJECTIONS TO EVIDENCE IN OPPOSITION TO MOTION INC.‘S &MHI.LP FOR SUMMARY ADJUDICATION [RAPHAEL METZGER DECLARATION]