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
David J. Byassee, Bar No. 244509
James Whitemyer, Bar No. 185528 F ‘
.
z. D
SUPERIOR coukt 0F CALIFORgtA
[\J
PLAIN LEGAL PC COUNTY
2005 Via Vina SAN BE §§§fl$§§§§$§
San Clemente, California 92673 APR 2 7 2023
(866) 286-5002
service@plain-legal.com
‘
N M45
(5M1 Wham
VQUI-Pw
Attorneys for Defendant
KING EQUIPMENT, LLC (DOE 1)
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN BERNARDINO
10
11 RAFAEL CARVAJAL MARQUEZ; Case No. CIVDSZOIOSIO
ADRIANA QUINTERO MADRIGAL,
12
Plaintiffs, REPLY TO OPPOSITION TO
13 DEMURRER TO CROSS-COMPLAINT
v.
14 DEMURRER DATE: May 4, 2023
GENIE INDUSTRIES, INC.; TEREX DEMURRER TIME: 8:30 a.m.
15 CORPORATION; DUKE REALTY LOCATION: Department $23
LIMITED PARTNERSHIP; DUKE
16 REALTY CORPORATION; GREGG
ELECTRIC, INC,; LE, GENERAL Judge: Hon. Donald Alvarez
17 ENGINEERING INC.; and DOES 1-100, Dept: 523
inclusive
18 Action Filed: June 11, 2020
Defendants, Trial Date: October 9, 2023
19
20
21 I. THE PARTIES’ COUNSEL EXHAUSTIVELY MET AND CONFERED
22 “A determination by the court that the meet and confer process was insufficient shall not
23 be grounds to overrule or sustain a demurrer.” Code of Civil Procedure That
§ 430.41(a)(4).
24 being the case, the parties’ counsel did indeed exhaustively meet and confer 0n the subjects of the
25 present demurrer over the course of months, and Genie’s and Terex’s (collectively “Genie” herein)
26 Opposition tellingly does not suggest otherwise.
27 Furthermore, the main issues in the present demurrer were raised by King in its Opposition
28 to Genie’s Motion for Leave to File Cross-Complaint. This Court (and counsel for Genie) may
1
NOTICE OF DEMURRER AND DEMURRER TO CROSS-COMPLAINT
even recall that during oral arguments 0n Genie’s Motion for Leave to File Cross-Complaint that it
was acknowledged in substance that a demurrer was coming from King once Genie’s Cross-
Complaint was filed — which is exactly what transpired.
II. SUBSTANTIAL COMPLIANCE WITH CAPTION FORMAT RULE — NO
\DOOVONUI-RUJNH
CONFUSION AND NO PREJUDICE TO GENIE
California Rule of Court 3.1320(e) states that “[a] demurrer must state, on the first page
immediately below the number of the case, the name of the party filing the demurrer and the name
of the party whose pleading is the subject of the demurrer.” The caption for the present demurrer
does indeed indicate on the first page below the case number “the name of the party filing the
demurrer and the name of the party whose pleading is the subject of the demurrer” — albeit several
lines past the case number.
There is no prejudice to Genie, or confusion, caused by this inadvertent and partial
deviance from a formatting Rule. King respectfully suggests that to deny a demurrer on this basis
PLAIN would exalt form over substance, which
LEGAL
is generally disfavored. Civil Code § 3528 (“The law
respects form less than substance.”) Also, rules of pleading are conveniences to promote justice,
not to impede it. Avalon Painting C0. v. Alert Lumber Co. (1965) 234 Cal.App.2d 178, 185.
Further, it is the general rule “that no particular specification is required in a demurrer for want of
NNNNNNNNNr—Ip—I—tp—Ip—dwy—dwp—AH
facts” — which is indeed the nature of the present demurrer. See Matteson v. Board ofEducation
WQQMkWNHOOWNQM-PWNHO
(1930) 104 Cal.App.647, 652 (discussing a general demurrer’s immaterial deviation from a
pleading requirement and favoring resolution 0n the merits). Finally, Genie cites no authorities
suggesting a demurrer should be overruled due to a minor deviance from a formatting Rule that
causes neither confusion nor prejudice.
III. THE CROSS-COMPLAINT SPEAKS FOR ITSELF, AND IT ALLEGES NO
NEGLIGENCE OR WRONGDOING ON THE PART OF KING
Comparative fault between and among tortfeasors, requires the pleaded factual element of
some description of, or reference to, the subject tortuous conduct — “there must be some basis for
tort liability against the proposed indemnitor.” BFGC Architects Planners v. Forcum/Mackey
(2004) 14 Cal.Rptr.3d 721 723; see also, CACI 3800; Bailey, supra, 199 Ca1.App.4th at p. 217.
2
NOTICE OF DEMURRER AND DEMURRER TO CROSS-CONIPLAINT
Document Filed Date
April 27, 2023
Case Filing Date
June 11, 2020
Category
Personal Injury Non-Motor Vehicle Unlimited
For full print and download access, please subscribe at https://www.trellis.law/.
Preview
David J. Byassee, Bar No. 244509 James Whitemyer, Bar No. 185528 F ‘ . z. D SUPERIOR coukt 0F CALIFORgtA [\J PLAIN LEGAL PC COUNTY 2005 Via Vina SAN BE §§§fl$§§§§$§ San Clemente, California 92673 APR 2 7 2023 (866) 286-5002 service@plain-legal.com ‘ N M45 (5M1 Wham VQUI-Pw Attorneys for Defendant KING EQUIPMENT, LLC (DOE 1) SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN BERNARDINO 10 11 RAFAEL CARVAJAL MARQUEZ; Case No. CIVDSZOIOSIO ADRIANA QUINTERO MADRIGAL, 12 Plaintiffs, REPLY TO OPPOSITION TO 13 DEMURRER TO CROSS-COMPLAINT v. 14 DEMURRER DATE: May 4, 2023 GENIE INDUSTRIES, INC.; TEREX DEMURRER TIME: 8:30 a.m. 15 CORPORATION; DUKE REALTY LOCATION: Department $23 LIMITED PARTNERSHIP; DUKE 16 REALTY CORPORATION; GREGG ELECTRIC, INC,; LE, GENERAL Judge: Hon. Donald Alvarez 17 ENGINEERING INC.; and DOES 1-100, Dept: 523 inclusive 18 Action Filed: June 11, 2020 Defendants, Trial Date: October 9, 2023 19 20 21 I. THE PARTIES’ COUNSEL EXHAUSTIVELY MET AND CONFERED 22 “A determination by the court that the meet and confer process was insufficient shall not 23 be grounds to overrule or sustain a demurrer.” Code of Civil Procedure That § 430.41(a)(4). 24 being the case, the parties’ counsel did indeed exhaustively meet and confer 0n the subjects of the 25 present demurrer over the course of months, and Genie’s and Terex’s (collectively “Genie” herein) 26 Opposition tellingly does not suggest otherwise. 27 Furthermore, the main issues in the present demurrer were raised by King in its Opposition 28 to Genie’s Motion for Leave to File Cross-Complaint. This Court (and counsel for Genie) may 1 NOTICE OF DEMURRER AND DEMURRER TO CROSS-COMPLAINT even recall that during oral arguments 0n Genie’s Motion for Leave to File Cross-Complaint that it was acknowledged in substance that a demurrer was coming from King once Genie’s Cross- Complaint was filed — which is exactly what transpired. II. SUBSTANTIAL COMPLIANCE WITH CAPTION FORMAT RULE — NO \DOOVONUI-RUJNH CONFUSION AND NO PREJUDICE TO GENIE California Rule of Court 3.1320(e) states that “[a] demurrer must state, on the first page immediately below the number of the case, the name of the party filing the demurrer and the name of the party whose pleading is the subject of the demurrer.” The caption for the present demurrer does indeed indicate on the first page below the case number “the name of the party filing the demurrer and the name of the party whose pleading is the subject of the demurrer” — albeit several lines past the case number. There is no prejudice to Genie, or confusion, caused by this inadvertent and partial deviance from a formatting Rule. King respectfully suggests that to deny a demurrer on this basis PLAIN would exalt form over substance, which LEGAL is generally disfavored. Civil Code § 3528 (“The law respects form less than substance.”) Also, rules of pleading are conveniences to promote justice, not to impede it. Avalon Painting C0. v. Alert Lumber Co. (1965) 234 Cal.App.2d 178, 185. Further, it is the general rule “that no particular specification is required in a demurrer for want of NNNNNNNNNr—Ip—I—tp—Ip—dwy—dwp—AH facts” — which is indeed the nature of the present demurrer. See Matteson v. Board ofEducation WQQMkWNHOOWNQM-PWNHO (1930) 104 Cal.App.647, 652 (discussing a general demurrer’s immaterial deviation from a pleading requirement and favoring resolution 0n the merits). Finally, Genie cites no authorities suggesting a demurrer should be overruled due to a minor deviance from a formatting Rule that causes neither confusion nor prejudice. III. THE CROSS-COMPLAINT SPEAKS FOR ITSELF, AND IT ALLEGES NO NEGLIGENCE OR WRONGDOING ON THE PART OF KING Comparative fault between and among tortfeasors, requires the pleaded factual element of some description of, or reference to, the subject tortuous conduct — “there must be some basis for tort liability against the proposed indemnitor.” BFGC Architects Planners v. Forcum/Mackey (2004) 14 Cal.Rptr.3d 721 723; see also, CACI 3800; Bailey, supra, 199 Ca1.App.4th at p. 217. 2 NOTICE OF DEMURRER AND DEMURRER TO CROSS-CONIPLAINT