On June 11, 2020 a
Motion-Secondary
was filed
involving a dispute between
Duke Realty Limited Partnership,
Insurance Company Of The West,
Madrigal, Adriana Quintero,
Marquez, Rafael Carvajal,
and
Does 2-100,
Duke Realty Corporation,
Duke Realty Limited Partnership,
Genie Industries, Inc.,
Gregg Electric, Inc.,
I.E. General Engineering Inc.,
King Equipment, Llc,
Terex Corporation,
General Engineering, Inc,
Gregg Electric, Inc., I.E.,
King Equipment, Inc.,
Roes 2 To 100,
for Personal Injury Non-Motor Vehicle Unlimited
in the District Court of San Bernardino County.
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ORHGHNAL
David J. Byassee, Bar No. 244509 SUPERIOREsolulfiTgFQALlFom-HA
James Whltemyer, Bar No. 185528 COUNW OF SAN BERNARDINO
pLAIN LEGAL PC SAN BERNARDINO DsS‘rRsCT
2005 Via Vina
San Clemente, California 92673 Nov 1 5 2022
(714) 587-5214
service@p1ain-legal.com r”
fr? t/ //L/
BY: Richar‘d Machgi? Dep...+_-.;
Attorneys for Defendant
KING EQUIPMENT, LLC. (DOE 1)
GaXVd
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN BERNARDINO
10
11 RAFAEL CARVAJAL MARQUEZ; Case No. CIVD820103 1 0
ADRIANA QUINTERO MADRIGAL,
12
Plaintiffs, OPPOSITION TO MOTION FOR LEAVE
13 TO FILE CROSS-COMPLAINT
V.
14 MOTION DATE: December 1, 2022
GENIE INDUSTRIES, INC.; TEREX MOTION TIME: 8:30 a.m.
15 CORPORATION; DUKE REALTY LOCATION: Department S23
LIMITED PARTNERSHIP; DUKE
16 REALTY CORPORATION; GREGG
ELECTRIC,INC,; LE, GENERAL Judge: Hon. Donald Alvarez
17 ENGINEERING INC.; and DOES 1-100, Dept-I $23
inclusive
18 Action Filed: June 11, 2020
Defendants, Trial Date: October 9, 2023
19
20
21
22 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
23 Defendant KING EQUIPMENT, LLC (DOE 1) ("King") hereby opposes GENIE
24 INDUSTRIES INC.’s and TEREX CORPORATION’S (collectively “moving party” and/or
25 “Genie” herein) motion for leave to file cross-complaint (“motion”) as follows:
26 I. INTRODUCTION AND SUMMARY
27 Genie’s motion should be denied because: (a) the proposed cross-complaint is insufficient,
28 non-viable and unmeritorious on its face in that the written contract upon which it is based is
I
OPPOSITION TO MOTION FOR LEAVE TO FILE CROSS-COMPLAINT
neither attached nor recited therein, in violation of pleading requirements;
(b) Genie abandoned
efforts to meet and confer prior to the filing of this surprise motion; (c) the proposed cross-
complaint is not ripe until payment, Which has not occurred, so it can (and should) be filed after
the underlying action is over (Civil Code § 2778(1)); (d) the motion does not have a “good cause”
supporting declaration explaining why the cross-complaint was not brought earlier; and (e) the
Genie cross—complaint is likely being brought for an improper purpose — for retaliate against King
and thwart King’s ability t0 settle with and/or get dismissed by Plaintiff.
II. BASIC FACTS
This products liability matter arises from a drywall installer’s (Plaintiff’ s) accidental fall
10 from a Genie scissor lift (“lift”) at a construction site. Plaintiff stepped off the raised lift while
11 working and fell, because the rear guardrail of the lift had been unlatched and laid flat (not used)
12 by one 0f the lift’s operators — either Plaintiff himself or one of his co-workers.
13 Genie alone designed and manufactured the lift; and Genie alone decided what warnings to
PLAIN 14 affix to the and where.
lift,
LEGAL
9c
15 The main issue for trial is expected to be: Is it a defectfor Genie t0 have made its scissor
16 lift s0 it could be used by an operatorfrom the lift platform while the rear guardrail is not up and
17 secured?
18 King was the rental company that rented the lift to Plaintiff s employer. There is n0
19 known allegation King modified the lift or failed to maintain it. King is a strict liability “stream 0f
20 commerce” defendant for a lift designed and built by Genie.
21 Genie claims King owes it contractual indemnity; but after multiple requests by King,
22 Genie has never produced a Genie-King contract.
23 III. NO CONTRACT IS ALLEGED — NO CONTRACT EXISTS
24 A written contract must be pleaded in a complaint or cross-complaint either by reciting its
25 terms verbatim or attaching a copy. Heritage Pacific Financial, LLC v. Monroy (2013) 21 5
26 Cal.App.4th 972. Neither has been done by Genie.
27
Express indemnity agreements require even more. Express indemnity agreements are
28
strictly construed against the indemnitee. Herman Christensen & Sons, Inc. v. Paris
2
OPPOSITION TO MOTION FOR LEAVE TO FILE CROSS-COMPLAINT
Document Filed Date
November 15, 2022
Case Filing Date
June 11, 2020
Category
Personal Injury Non-Motor Vehicle Unlimited
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ORHGHNAL David J. Byassee, Bar No. 244509 SUPERIOREsolulfiTgFQALlFom-HA James Whltemyer, Bar No. 185528 COUNW OF SAN BERNARDINO pLAIN LEGAL PC SAN BERNARDINO DsS‘rRsCT 2005 Via Vina San Clemente, California 92673 Nov 1 5 2022 (714) 587-5214 service@p1ain-legal.com r” fr? t/ //L/ BY: Richar‘d Machgi? Dep...+_-.; Attorneys for Defendant KING EQUIPMENT, LLC. (DOE 1) GaXVd SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN BERNARDINO 10 11 RAFAEL CARVAJAL MARQUEZ; Case No. CIVD820103 1 0 ADRIANA QUINTERO MADRIGAL, 12 Plaintiffs, OPPOSITION TO MOTION FOR LEAVE 13 TO FILE CROSS-COMPLAINT V. 14 MOTION DATE: December 1, 2022 GENIE INDUSTRIES, INC.; TEREX MOTION TIME: 8:30 a.m. 15 CORPORATION; DUKE REALTY LOCATION: Department S23 LIMITED PARTNERSHIP; DUKE 16 REALTY CORPORATION; GREGG ELECTRIC,INC,; LE, GENERAL Judge: Hon. Donald Alvarez 17 ENGINEERING INC.; and DOES 1-100, Dept-I $23 inclusive 18 Action Filed: June 11, 2020 Defendants, Trial Date: October 9, 2023 19 20 21 22 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 23 Defendant KING EQUIPMENT, LLC (DOE 1) ("King") hereby opposes GENIE 24 INDUSTRIES INC.’s and TEREX CORPORATION’S (collectively “moving party” and/or 25 “Genie” herein) motion for leave to file cross-complaint (“motion”) as follows: 26 I. INTRODUCTION AND SUMMARY 27 Genie’s motion should be denied because: (a) the proposed cross-complaint is insufficient, 28 non-viable and unmeritorious on its face in that the written contract upon which it is based is I OPPOSITION TO MOTION FOR LEAVE TO FILE CROSS-COMPLAINT neither attached nor recited therein, in violation of pleading requirements; (b) Genie abandoned efforts to meet and confer prior to the filing of this surprise motion; (c) the proposed cross- complaint is not ripe until payment, Which has not occurred, so it can (and should) be filed after the underlying action is over (Civil Code § 2778(1)); (d) the motion does not have a “good cause” supporting declaration explaining why the cross-complaint was not brought earlier; and (e) the Genie cross—complaint is likely being brought for an improper purpose — for retaliate against King and thwart King’s ability t0 settle with and/or get dismissed by Plaintiff. II. BASIC FACTS This products liability matter arises from a drywall installer’s (Plaintiff’ s) accidental fall 10 from a Genie scissor lift (“lift”) at a construction site. Plaintiff stepped off the raised lift while 11 working and fell, because the rear guardrail of the lift had been unlatched and laid flat (not used) 12 by one 0f the lift’s operators — either Plaintiff himself or one of his co-workers. 13 Genie alone designed and manufactured the lift; and Genie alone decided what warnings to PLAIN 14 affix to the and where. lift, LEGAL 9c 15 The main issue for trial is expected to be: Is it a defectfor Genie t0 have made its scissor 16 lift s0 it could be used by an operatorfrom the lift platform while the rear guardrail is not up and 17 secured? 18 King was the rental company that rented the lift to Plaintiff s employer. There is n0 19 known allegation King modified the lift or failed to maintain it. King is a strict liability “stream 0f 20 commerce” defendant for a lift designed and built by Genie. 21 Genie claims King owes it contractual indemnity; but after multiple requests by King, 22 Genie has never produced a Genie-King contract. 23 III. NO CONTRACT IS ALLEGED — NO CONTRACT EXISTS 24 A written contract must be pleaded in a complaint or cross-complaint either by reciting its 25 terms verbatim or attaching a copy. Heritage Pacific Financial, LLC v. Monroy (2013) 21 5 26 Cal.App.4th 972. Neither has been done by Genie. 27 Express indemnity agreements require even more. Express indemnity agreements are 28 strictly construed against the indemnitee. Herman Christensen & Sons, Inc. v. Paris 2 OPPOSITION TO MOTION FOR LEAVE TO FILE CROSS-COMPLAINT