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.
Preview
~~
SUPERIOR COURT OF CALIFORNIA
ce BER
SAN BERNARDINO DISTRICT
Kimberly S. Oberrecht, Esq. [C.S.B. No. 190794]
Dawn C. Nelms, Esq. [C.S.B. No. 222845] JUL 97 2021
HORTON, OBERRECHT & KIRKPATRICK
101 W. Broadway, Suite 600
San Diego, California 92101
(619) 232-1183; Fax (619) 696-5719 JUSTIN MANASSEE, DEPUTY,
Attorneys for Defendant/Cross-Complainant, DUKE REALTY LIMITED PARTNERSHIP
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN BERNARDINO
10 RAFAEL CARVAJAL MARQUEZ; ADRIANA) CASE NO. CIVDS2010310
QUINTERO MADRIGAL, [Assigned to Hon. Donald R. Alvarez,
1 Dept. S-23]
Plaintiffs,
12 DEFENDANT DUKE REALTY
vs. LIMITED PARTNERSHIP’S
13 MEMORANDUM OF POINTS AND
GENIE INDUSTRIES, INC.; TEREX AUTHORITIES IN SUPPORT OF
14 CORPORATION; DUKE REALTY LIMITED MOTION FOR SUMMARY
PARTNERSHIP; DUKE REALTY JUDGMENT OR, IN THE
15 CORPORATION; GREGG ELECTRIC, INC.; LE. ALTERNATIVE, SUMMARY
GENERAL ENGINEERING, INC.; and DOES 1- ADJUDICATION
16 100, Inclusive,
Hearing Date: 9/21/21
17 Defendants. Hearing Time: 9:00 a.m.
Dept.: 23
18
AND ALL RELATED CROSS-ACTIONS. Complaint Filed: 06/11/20
19 Trial Date: 5/9/22
20
21 Defendant/Cross-Complainant, DUKE REALTY LIMITED PARTNERSHIP hereby submits
in the
22 its memorandum of points and authorities in support of Motion for Summary Judgment, or
23 alternative, Summary Adjudication.
24 1
25 //1
26 M11
27
28
DUKE REALTY’S
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT
ALTERNA TIVE, MOTION FOR SUMMARY
MOTION FOR SUMMARY JUDGMENT, OR IN THE
ADJUDICATION
GACLIENTS\6724\Pleadings\MSJ Duke Realty\MSJ - TOC-TOA.wpd i
TABLE OF CONTENTS
Page
INTRODUCTION
PLAINTIFFS' ALLEGATIONS
Tl STATEMENT OF FACTS
LEGAL STANDARD
THERE IS NO MERIT TO PLAINTIFFS' STRICT LIABILITY CLAIMS
DUKE REALTY IS NOT LIABLE FOR ITS CONTRACTOR'S ACTIONS
A Duke Realty is Entitled to a Presumption of Non-Liability
10 1 Duke Realty Did Not "Retain Control" Over JSR's Scope of Work
11 2 There Was No Hazardous Condition on Duke Realty's Property 10
12 B This is Not a Premises Liability Case 10
13 Cc Plaintiff Failed to Follow Basic Safety Procedures 11
14 VIL PLAINTIFFS' CLAIM FOR PUNITIVE DAMAGES HAS NO MERIT ll
Vil. PLAINTIFF MADRIGAL'S LOSS OF CONSORTIUM CLAIM FAILS 13
15
16 CONCLUSION 13
17
18
19
20
21
22
23
24
25
26
27
28
REALTY’S
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT DUKE
MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY
ADJUDICATION
GACLIENTS\6724\Pleadings\MSJ Duke Realty\MSJ - TOC-TOA.wpd ii
Document Filed Date
July 07, 2021
Case Filing Date
June 11, 2020
Category
Personal Injury Non-Motor Vehicle Unlimited
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~~ SUPERIOR COURT OF CALIFORNIA ce BER SAN BERNARDINO DISTRICT Kimberly S. Oberrecht, Esq. [C.S.B. No. 190794] Dawn C. Nelms, Esq. [C.S.B. No. 222845] JUL 97 2021 HORTON, OBERRECHT & KIRKPATRICK 101 W. Broadway, Suite 600 San Diego, California 92101 (619) 232-1183; Fax (619) 696-5719 JUSTIN MANASSEE, DEPUTY, Attorneys for Defendant/Cross-Complainant, DUKE REALTY LIMITED PARTNERSHIP SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN BERNARDINO 10 RAFAEL CARVAJAL MARQUEZ; ADRIANA) CASE NO. CIVDS2010310 QUINTERO MADRIGAL, [Assigned to Hon. Donald R. Alvarez, 1 Dept. S-23] Plaintiffs, 12 DEFENDANT DUKE REALTY vs. LIMITED PARTNERSHIP’S 13 MEMORANDUM OF POINTS AND GENIE INDUSTRIES, INC.; TEREX AUTHORITIES IN SUPPORT OF 14 CORPORATION; DUKE REALTY LIMITED MOTION FOR SUMMARY PARTNERSHIP; DUKE REALTY JUDGMENT OR, IN THE 15 CORPORATION; GREGG ELECTRIC, INC.; LE. ALTERNATIVE, SUMMARY GENERAL ENGINEERING, INC.; and DOES 1- ADJUDICATION 16 100, Inclusive, Hearing Date: 9/21/21 17 Defendants. Hearing Time: 9:00 a.m. Dept.: 23 18 AND ALL RELATED CROSS-ACTIONS. Complaint Filed: 06/11/20 19 Trial Date: 5/9/22 20 21 Defendant/Cross-Complainant, DUKE REALTY LIMITED PARTNERSHIP hereby submits in the 22 its memorandum of points and authorities in support of Motion for Summary Judgment, or 23 alternative, Summary Adjudication. 24 1 25 //1 26 M11 27 28 DUKE REALTY’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT ALTERNA TIVE, MOTION FOR SUMMARY MOTION FOR SUMMARY JUDGMENT, OR IN THE ADJUDICATION GACLIENTS\6724\Pleadings\MSJ Duke Realty\MSJ - TOC-TOA.wpd i TABLE OF CONTENTS Page INTRODUCTION PLAINTIFFS' ALLEGATIONS Tl STATEMENT OF FACTS LEGAL STANDARD THERE IS NO MERIT TO PLAINTIFFS' STRICT LIABILITY CLAIMS DUKE REALTY IS NOT LIABLE FOR ITS CONTRACTOR'S ACTIONS A Duke Realty is Entitled to a Presumption of Non-Liability 10 1 Duke Realty Did Not "Retain Control" Over JSR's Scope of Work 11 2 There Was No Hazardous Condition on Duke Realty's Property 10 12 B This is Not a Premises Liability Case 10 13 Cc Plaintiff Failed to Follow Basic Safety Procedures 11 14 VIL PLAINTIFFS' CLAIM FOR PUNITIVE DAMAGES HAS NO MERIT ll Vil. PLAINTIFF MADRIGAL'S LOSS OF CONSORTIUM CLAIM FAILS 13 15 16 CONCLUSION 13 17 18 19 20 21 22 23 24 25 26 27 28 REALTY’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT DUKE MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION GACLIENTS\6724\Pleadings\MSJ Duke Realty\MSJ - TOC-TOA.wpd ii