On January 23, 2014 a
Answer
was filed
involving a dispute between
John P. Ryan,
Mary C. Ryan,
and
Air & Liquid Systems Corporation As Successor By Merger To Buffalo Pumps, Inc.,
Aluminum Company Of America,
American Biltrite, Individually And As Successor To Amtico Floors,
Bell & Gossett Company,,
Bird, Incorporated,,
Borg-Warner, By Its Successor-In-Interest Borg Warner Morse Tec, Inc.,
Burnham Llc, Individually, And As Successor To Burnham Corporation,
Cbs Corporation, F K A Viacom Inc., Successor By Merger To Cbs Corporation, F K A Westinghouse Electric Corporation,
Certain Teed Corporation,,
Crane Co.,,
Crown Boiler Co., F K A Crown Industries, Inc.,
Dap Products Inc,
Domco Products Texas, Lp, Individually, And As Successor To Azrock Industries, Inc.,,
Domco Tarkett, Inc., Individually And As Successor To Azrock Industries, Inc.,,
Empire-Ace Insulation Mfg. Corp.,,
Foster Wheeler Corporation,,
Gates Corporation,,
General Electric Company,,
Georgia Pacific Co., Individually And As Successor To Bestwall Gypsum Company,
Goulds Pumps, Inc.,,
Grinnell, Llc,,
Honeywell Corp., F K A Allied Signal, Inc., Bendix,
Imo Industries, Inc.,,
Ingersoll-Rand Company,,
Itt Corporation,,
Itt Industries, Inc., Individually, And As Successor To Bell & Gossett Co., And As Successor To Kennedy Valve Manufacturing Co., Inc.,
Kaiser Gypsum Company, Inc.,,
Kamco Supply Corp.,,
Karnak Corporation,,
Mannington Mills, Inc.,,
Mario & Dibono Plastering Co. Inc.,,
Owens-Illinois, Inc.,,
Peerless Industries Inc.,,
The Fairbanks Company,,
Tishman Liquidating Corp.,,
Tishman Realty & Construction Co., Inc.,,
Trane U.S. Inc., F K A American Standard, Inc., Individually, And As Successor In Interest To Kewanee Boiler Corporation,
Union Carbide Corporation,
Weil-Mclain, A Division Of The Marley-Wylain Company,
Zy-Tech Global Industries, Inc.,,
for Asbestos
in the District Court of New York County.
Preview
FILED: NEW YORK COUNTY CLERK 02/12/2014 INDEX NO. 190010/2014
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 02/12/2014
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-----------------------------------------------------------------------x
JOHN P. RYAN and MARY C. RYAN ,
Plaintiffs,
Index No.: 190010/14
v.
VERIFIED ANSWER TO
AIR & LIQUID SYSTEMS CORPORATION, et al., PLAINTIFFS’ VERIFIED
COMPLAINT
Defendants.
-----------------------------------------------------------------------x
Defendant, MANNINGTON MILLS, INC. (hereinafter “MANNINGTON MILLS”) by
its attorneys, SEGAL McCAMBRIDGE SINGER & MAHONEY, LTD., for its answer to
Plaintiffs’ Verified Complaint, alleges the following upon information and belief:
1. Denies all material allegations in Plaintiffs’ Verified Complaint as they pertain to
MANNINGTON MILLS.
2. Denies knowledge or information sufficient to form a belief as to the truth of each
and every other allegation contained in Plaintiffs’ Verified Complaint.
WHEREFORE, defendant MANNINGTON MILLS demands dismissal of the Complaint
and any and all Cross-Claims.
AS AND FOR A FIRST SEPARATE AND COMPLETE DEFENSE
The Verified Complaint fails to state a cause of action against MANNINGTON MILLS.
AS AND FOR A SECOND SEPARATE AND COMPLETE DEFENSE
This Court lacks jurisdiction over the subject matter of this action.
AS AND FOR A THIRD SEPARATE AND COMPLETE DEFENSE
This Court lacks personal jurisdiction over MANNINGTON MILLS.
AS AND FOR A FOURTH SEPARATE AND COMPLETE DEFENSE
The lawsuit was not commenced by plaintiff within the time prescribed by law and the
plaintiff, therefore, is barred from recovery pursuant to applicable statutes of limitations.
AS AND FOR A FIFTH SEPARATE AND COMPLETE DEFENSE
The claims of plaintiff are barred by the doctrine of laches.
AS AND FOR A SIXTH SEPARATE AND COMPLETE DEFENSE
The damages allegedly sustained by plaintiff were caused, in whole or in part, by the
negligence or other culpable conduct of plaintiff and/or other defendants, which conduct
constituted a supervening cause of plaintiff’s alleged injuries.
AS AND FOR A SEVENTH SEPARATE AND COMPLETE DEFENSE
Insofar as the Verified Complaint and each cause of action considered separately allege a
cause of action occurring after September 1, 1975, each such cause of action is barred by reason
of the culpable conduct attributable to plaintiff, including contributory negligence and
assumption of the risk.
AS AND FOR A EIGHTH SEPARATE AND COMPLETE DEFENSE
Any damages allegedly sustained by the plaintiff were the proximate result of an
unforeseen occurrence and/or unforeseeable negligence, gross negligence, wanton, reckless or
intentional conduct constituting an intervening or superseding act or omission or other conduct
by third parties.
AS AND FOR A NINTH SEPARATE AND COMPLETE DEFENSE
The damages allegedly sustained by plaintiff were caused, in whole or in part, by the
negligence or other culpable conduct of one or more persons or instrumentalities over which
MANNINGTON MILLS had no control and with whom it had no legal relationship.
AS AND FOR AN TENTH SEPARATE AND COMPLETE DEFENSE
2
The damages allegedly sustained by plaintiff were caused, in whole or in part, through
unavoidable natural consequences.
AS AND FOR A ELEVENTH SEPARATE AND COMPLETE DEFENSE
If the plaintiff sustained damages as alleged, such damages occurred while they engaged
in activities into which they entered, knowing the hazard, risk and danger of the activities and
they assumed the risks incidental to and attendant to the activities.
AS AND FOR AN TWELFTH SEPARATE AND COMPLETE DEFENSE
All claims brought under New York Law, L. 1986 c. 682 Section 4 (enacted July 31,
1986) are time-barred in that said statute is in violation of the Constitution of the United States
and the Constitution of the State of New York.
AS AND FOR A THIRTEENTH SEPARATE AND COMPLETE DEFENSE
This action cannot be maintained, as there is another action pending for the same relief.
AS AND FOR A FOURTEENTH SEPARATE AND COMPLETE DEFENSE
To the extent that any injury relating to plaintiff occurred in the context of an employer-
employee relationship, claims for said injuries are preempted by the Workers’ Compensation
Act.
AS AND FOR A FIFTEENTH SEPARATE AND COMPLETE DEFENSE
No acts or omissions of MANNINGTON MILLS proximately caused plaintiff’s
damages.
AS AND FOR A SIXTEENTH SEPARATE AND COMPLETE DEFENSE
Any asbestos-containing product of or used in conjunction with products sold by
MANNINGTON MILLS that may have been present at plaintiff’s job locations were installed or
configured on the basis of the specifications, approval or at the instruction of governmental or
legislative agencies or other regulatory bodies.
3
AS AND FOR A SEVENTEENTH SEPARATE AND COMPLETE DEFENSE
The damages sustained by plaintiff arising from their alleged exposure to asbestos-
containing products while working on or near the equipment or other product allegedly
manufactured or sold by MANNINGTON MILLS (the “Product”), were caused, in whole or in
part, by the improper use and operation of the Product, rather than any defect in the design,
manufacture, production, assemblage, installation, testing, labeling, marketing, distribution, sale
or inspection of the Product by MANNINGTON MILLS.
AS AND FOR A EIGHTEENTH SEPARATE AND COMPLETE DEFENSE
The damages sustained by the plaintiff which allegedly arose from the Product were
caused by its alteration, misuse and/or improper maintenance by one or more persons or
instrumentalities other than MANNINGTON MILLS, rather than any defect in the design,
manufacture, production, assemblage, installation, testing, labeling, marketing, distribution, sale
or inspection of the Product by MANNINGTON MILLS.
AS AND FOR AN NINETEENTH SEPARATE AND COMPLETE DEFENSE
MANNINGTON MILLS is not liable for the damages allegedly sustained by plaintiff
because plaintiff is not in privity of contract with MANNINGTON MILLS at any time and the
Product was not inherently dangerous.
AS AND FOR A TWENTIETH SEPARATE AND COMPLETE DEFENSE
The Product was in all respects fit and suitable for its intended and reasonably
foreseeable uses and was not in a defective or dangerous condition when it left MANNINGTON
MILLS’s possession and control.
AS AND FOR A TWENTY-FIRST SEPARATE AND COMPLETE DEFENSE
No implied warranties, including the warranties of merchantability and fitness for a
particular purpose, became a part of the basis of the bargain in the sale of the Product.
4
AS AND FOR A TWENTY-SECOND SEPARATE AND COMPLETE DEFENSE
Oral warranties upon which plaintiff allegedly relied are unavailable as violative of the
provisions of the applicable Statute of Frauds.
AS AND FOR A TWENTY-THIRD SEPARATE AND COMPLETE DEFENSE
To the extent that plaintiff sustained injuries from the use of a product sold by
MANNINGTON MILLS that is alleged to have contained asbestos, which is denied, plaintiff,
plaintiff’s decedents, other defendants or other parties not under the control of MANNINGTON
MILLS misused, abused, misapplied and otherwise mishandled the part of the product alleged to
have been asbestos material. Therefore, the amount of damages must be diminished by the
proportion, which said misuse, abuse, misapplication and mishandling bears to the conduct,
which allegedly caused plaintiff’s damage or injury.
AS AND FOR A TWENTY-FOURTH SEPARATE AND COMPLETE DEFENSE
In the event it should be proven at the time of trial that all the defendants are subject to
market share liability, then MANNINGTON MILLS’s share of such liability would be of such a
de minimis amount as to make its contribution for damages negligible, and MANNINGTON
MILLS would be entitled to contribution, either in whole or in part, from co-defendants.
AS AND FOR A TWENTY-FIFTH SEPARATE AND COMPLETE DEFENSE
MANNINGTON MILLS denies that the asbestos products alleged in plaintiff’s Verified
Complaint are products within the meaning and scope of the Restatement of Torts Section 402A
and as such the Verified Complaint fails to state a cause of action in strict liability.
AS AND FOR A TWENTY-SIXTH SEPARATE AND COMPLETE DEFENSE
MANNINGTON MILLS had no knowledge or reason to know of any alleged risks
associated with asbestos and/or asbestos-containing products at the time of sale or at any other
time during plaintiff’s alleged exposure.
5
AS AND FOR A TWENTY-SEVENTH SEPARATE AND COMPLETE DEFENSE
Plaintiff did not directly or indirectly purchase any asbestos-containing products from
MANNINGTON MILLS and, therefore, was not the recipient of an express or implied warranty
made by MANNINGTON MILLS
AS AND FOR A TWENTY-EIGHT SEPARATE AND COMPLETE DEFENSE
To the extent plaintiff was exposed to any product containing asbestos as a result of
conduct by MANNINGTON MILLS, which is denied, said exposure was de minimis and not a
substantial contributing factor to any asbestos-related disease which plaintiff may have
developed, such that plaintiff’s claim is not actionable at law or equity.
AS AND FOR A TWENTY-NINTH SEPARATE AND COMPLETE DEFENSE
Exposure to asbestos fibers allegedly attributable to MANNINGTON MILLS was so de
minimis so as to be insufficient as a matter of law to enable plaintiff to establish to a reasonable
degree of probability that the Products are capable of causing injury or damages and must be
considered speculative as a matter of law.
AS AND FOR A THIRTIETH SEPARATE AND COMPLETE DEFENSE
Finished or otherwise encapsulated asbestos-containing products are not unreasonably
dangerous as a matter of law.
6
AS AND FOR A THIRTY-FIRST SEPARATE AND COMPLETE DEFENSE
If MANNINGTON MILLS was on notice of any hazard or defect for which plaintiff
seeks relief, which MANNINGTON MILLS denies, plaintiff also had such notice of the existing
hazard at or about the same time as MANNINGTON MILLS, and is thereby is barred from
recovery.
AS AND FOR A THIRTY-SECOND SEPARATE AND COMPLETE DEFENSE
There is no justiciable issue or controversy.
AS AND FOR A THIRTY-THIRD SEPARATE AND COMPLETE DEFENSE
The claims for damages have not accrued, are purely speculative, uncertain and
contingent.
AS AND FOR A THIRTY-FOURTH SEPARATE AND COMPLETE DEFENSE
Plaintiff’s claim is barred under applicable state and federal law.
AS AND FOR A THIRTY-FIFTH SEPARATE AND COMPLETE DEFENSE
Plaintiff voluntarily assumed the risk of injury.
AS AND FOR A THIRTY-SIXTH SEPARATE AND COMPLETE DEFENSE
Plaintiff’s injury was not foreseeable.
AS AND FOR A THIRTY-SEVENTH SEPARATE AND COMPLETE DEFENSE
MANNINGTON MILLS was under no duty to warn purchasers, their employees, other
independent contractors, or those under their control. If such warning was required, purchaser or
plaintiff’s employer owed a duty to warn and their failure to do so was a superseding proximate
cause of injury.
AS AND FOR A THIRTY-EIGHTH SEPARATE AND COMPLETE DEFENSE
Plaintiff were warned of risk of exposure to use of asbestos-containing materials and
failed to take necessary or recommended precautions to prevent against the risk of injury.
7
AS AND FOR A THIRTY-NINTH SEPARATE AND COMPLETE DEFENSE
Plaintiff’s claims are barred under applicable law pursuant to public policy, since social
utility and benefit of asbestos-containing products outweighed the risk at the time of plaintiff’s
alleged exposure.
AS AND FOR A FORTIETH SEPARATE AND COMPLETE DEFENSE
To the extent plaintiff seeks to maintain a claim for relief on behalf of any decedent, said
plaintiff lacks capacity and/or standing to maintain such claim for relief against MANNINGTON
MILLS.
AS AND FOR A FORTY-FIRST SEPARATE AND COMPLETE DEFENSE
Plaintiff’s claims are barred because of plaintiff’s failure to join necessary and
indispensable parties.
AS AND FOR A FORTY-SECOND SEPARATE AND COMPLETE DEFENSE
Plaintiff may not bring this action as they have failed to exhaust all of their administrative
remedies.
AS AND FOR A FORTY-THIRD SEPARATE AND COMPLETE DEFENSE
Plaintiff and/or plaintiff’s decedents failed to mitigate or otherwise act to lessen or reduce
the injuries alleged in the Verified Complaint.
AS AND FOR A FORTY-FOURTH SEPARATE AND COMPLETE DEFENSE
Plaintiff’s cause of action for exemplary or punitive damages is barred because such
damages are not recoverable under applicable law or otherwise unwarranted in this action.
AS AND FOR A FORTY-FIFTH SEPARATE AND COMPLETE DEFENSE
Plaintiff’s demands for punitive damages are barred by the due process clauses of the
Fourteenth Amendment to the United States Constitution and the New York State Constitution.
AS AND FOR A FORTY-SIXTH SEPARATE AND COMPLETE DEFENSE
8
Plaintiff’s demands for punitive damages are barred by the proscription of the Eighth
Amendment to the United States Constitution, as applied to the states through the Fourteenth
Amendment, and Article I, Section 5 of the New York State Constitution prohibiting the
imposition of excessive fines.
AS AND FOR A FORTY-SEVENTH SEPARATE AND COMPLETE DEFENSE
Plaintiff’s demands for punitive damages are barred by the "double jeopardy" clause of
the Fifth Amendment to the United States Constitution, as applied to the states through the
Fourteenth Amendment, and Article I, Section 6 of the New York State Constitution.
AS AND FOR A FORTY-EIGHTH SEPARATE AND COMPLETE DEFENSE
If plaintiff sustained injuries in the manner alleged, all of which has been denied by
MANNINGTON MILLS, the liability of MANNINGTON MILLS, if any, shall be limited in
accordance with Article 16 of the Civil Practice Law and Rules.
AS AND FOR A FORTY-NINTH SEPARATE AND COMPLETE DEFENSE
At all times relevant to this litigation, MANNINGTON MILLS complied with all
applicable law, regulations and standards.
AS AND FOR A FIFTIETH SEPARATE AND COMPLETE DEFENSE
Relief is barred by virtue of the doctrines of estoppel, collateral estoppel, and waiver.
AS AND FOR A FIFTY-FIRST SEPARATE AND COMPLETE DEFENSE
That at all times relevant to this litigation, the agents, servants and/or employees of
MANNINGTON MILLS utilized proper methods in the conduct of its operations, in conformity
with the available knowledge and research of the scientific and industrial communities, and
thereby complied with the state of the art existing at all relevant times.
AS AND FOR A FIFTY-SECOND SEPARATE AND COMPLETE DEFENSE
9
Plaintiff contributed to the illness, either in whole or in part, by exposure to or the use of
tobacco products and/or other substances, products, medications or drugs.
AS AND FOR A FIFTY-THIRD SEPARATE AND COMPLETE DEFENSE
Upon information and belief, some or all of the causes of action may not be maintained
because of arbitration and award.
AS AND FOR A FIFTY-FOURTH SEPARATE AND COMPLETE DEFENSE
Upon information and belief, some or all of the causes of action may not be maintained
because of discharge in bankruptcy.
AS AND FOR A FIFTY-FIFTH SEPARATE AND COMPLETE DEFENSE
Upon information and belief, some or all of the causes of action may not be maintained
because of payment.
AS AND FOR A FIFTY-SIXTH SEPARATE AND COMPLETE DEFENSE
Upon information and belief, some or all of the causes of action may not be maintained
because of release.
AS AND FOR A FIFTY-SEVENTH SEPARATE AND COMPLETE DEFENSE
Upon information and belief, some or all of the causes of action may not be maintained
because of res judicata.
AS AND FOR A FIFTY-EIGHTH SEPARATE AND COMPLETE DEFENSE
All defenses which have been or will be asserted by other defendants and/or any third-
party defendants in this action are adopted and incorporated by reference as if fully set forth at
length herein as defenses to Plaintiffs’ Verified Complaint. In addition, MANNINGTON
MILLS will rely upon any and all other further defenses which become available or appear
during discovery proceedings in this action and hereby specifically reserves the right to amend
its answer for the purposes of asserting any such additional defenses.
10
AS AND FOR A FIFTY-NINTH SEPARATE AND COMPLETE DEFENSE
To the extent plaintiff brings suit in a representative capacity, such plaintiff has failed to
allege sufficient facts to demonstrate legal capacity to sue pursuant to New York Estate Powers
and Trusts Law §5-1.1 to 5-4.6.
AS AND FOR A FIRST CROSS-CLAIM AGAINST ALL CO-DEFENDANTS
That if plaintiff sustained the damages in the manner and at the time and place alleged by
reason other than plaintiff’s own carelessness, recklessness, negligence and/or acts of omission
or commission and if it is found that the MANNINGTON MILLS is liable to plaintiff herein, all
of which is specifically denied, then MANNINGTON MILLS, on the basis of apportionment of
responsibility for the alleged occurrence, is entitled to indemnification and/or contribution from
the co-defendants and judgment over and against the aforementioned co-defendants, as a result
of the carelessness, recklessness, negligence and/or acts of omission or commission and/or
breach of warranty and/or breach of contract and/or strict or statutory liability of said co-
defendants, their agents, servants and/or employees for all or part of any verdict or judgment that
plaintiff may recover against MANNINGTON MILLS.
ANSWERS TO ALL CROSS-CLAIMS
MANNINGTON MILLS answers all cross-claims of co-defendants, saying:
All cross-claims for contribution alleged are denied.
All cross-claims for indemnification alleged are denied.
11
WHEREFORE, defendant MANNINGTON MILLS requests judgment in its favor
dismissing the Verified Complaint, judgment in its favor and against all co-defendants for all or
part of any sum awarded in favor of the plaintiff and against MANNINGTON MILLS and for
such other and further relief as the Court may deem just and proper.
Dated: New York, New York
February 12, 2014
Segal McCambridge Singer & Mahoney, Ltd.
Attorneys for Defendant
MANNINGTON MILLS, INC.
By: _s/Jordan D. Beltz__________
Jordan D. Beltz, Esq.
850 Third Avenue, 11th Floor
New York, New York 10022
(212) 651-7500
12
VERIFICATION
JORDAN D. BELTZ, an attorney duly admitted to practice in the Court of the State of
New York and designated as attorney for the defendant MANNINGTON MILLS, INC. affirms
the following statements to be true under the penalties of perjury, pursuant to Rule 2106 of the
CPLR:
That he has read the foregoing ANSWER and knows the contents thereof; that the same
is true to his own knowledge, except as to the matters therein stated to be alleged upon
information and belief, and that as to those matters he believes them to be true.
Affiant further says that the source of him information and the grounds of his belief are
derived from the files, books and records maintained in the normal course of business of the Law
Offices of Segal McCambridge Singer & Mahoney, Ltd. and statements made to him by officers
or agents of MANNINGTON MILLS, INC.
This Verification is made by affiant and not by defendant because defendant resides
outside the County of New York where affiant maintains her office.
Dated: New York, New York
February 12, 2014
__s/Jordan D. Beltz________
JORDAN D. BELTZ, ESQ.
13
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CASE NAME:
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Motion to be Relieved as Plaintiffs Counsel
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The Court GRANTS the motion. Plaintiffs Counsel must resubmit a correct and complete proposed order prior to the hearing, addressing the items discussed above, including the correct courthouse address in the caption and noting that the order is effective upon the filing of the proof of service of the signed order (Item 5.a.).
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This is a fraud action. On November 21, 2022, plaintiffs Michael Rosas and Odalys Rosas (collectively, Plaintiffs) filed this action against defendants OC Auto Exchange dba LA Auto Exchange, a California corporation, Western Surety Company, a South Dakota corporation, Capital One Auto Finance Inc., a Texas Corporation (collectively, Defendants), and Does 1 through 10. On February 21, 2023, Plaintiffs filed the operative First Amended Complaint against Defendants and Does 1 through 10, alleging causes of action for fraud & deceit, negligent misrepresentation, violation of Business and Professions Code section 17200, action for rescission of sales contract for sale of goods pursuant to California [
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On June 13, 2024,
Ben Roberts of Law Office of Ben Roberts moved to be relieved as counsel for Plaintiffs. Plaintiffs have not opposed the motion.
LEGAL STANDARD
The Court has discretion to allow an attorney to withdraw, and such a motion should be granted, provided that there is no prejudice to the client, and it does not disrupt the orderly process of justice. (
See
Ramirez v. Sturdevant
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People v. Prince
(1968) 268 Cal.App.2d 398, 403-407.)
A motion to be relieved as counsel must be made on Judicial Council Form MC-051 (Notice of Motion and Motion), MC-052 (Declaration), and MC-053 (Proposed Order). (Cal. Rules of Court, rule 3.1362, subds. (a), (c), (e).)
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Ben Roberts of Law Office of Ben Roberts (Counsel) seeks to be relieved as counsel for Plaintiffs Michael Rosas and Odalys Rosas. Counsel contends he and his firm have lost all contact with Plaintiffs. (Roberts Decls., ¶ 2.)
Grounds for permitting an attorney to withdraw from representation include the clients conduct that renders it unreasonably difficult for the lawyer to carry out the representation effectively[.] (Cal. Rules of Professional Conduct, rule 1.16, subd. (b)(4).) A breakdown in the attorney-client relationship is also grounds for allowing the attorney to withdraw. (
Estate of Falco
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First, each of the Judicial Council forms Counsel filed with the Court show that Counsel provided the wrong courthouse contact information in the caption of each document. Counsel provided the following contact information: 1427 West Covina Parkway, Compton, CA 90220. The correct courthouse address is 1427 West Covina Parkway, West Covina, CA 91790. Nevertheless, the proof of service filed on June 13, 2024, lists the correct courthouse address and the declaration provides the correct courthouse address for the Post-Arbitration Status Conference. The Court will not deny the motion on this ground but admonishes Counsel to carefully proofread documents to ensure they are accurate.
Second, the proposed order does not include the Post-Arbitration Status Conference scheduled for July 30, 2024. On May 13, 2024, the Courts minute order provided the new date. The motions to be relieved as counsel were filed on June 13, 2024, therefore, counsel was aware of the new date but failed to include it in the proposed order. The proposed order is also incomplete in that items 3, 5, 6, 9 and as previously discussed, item 7, have not been completed.
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CHRISTIE SOLIS
Tentative Ruling: Motion denied as the discovery request was served by Plaintiff (a party to the
action) in violation of CCP 1013a.
Ruling
Marcia Kelley vs R.C. Benson & Sons, Inc
Jul 10, 2024 |
23CV02864
23CV02864
KELLEY v. R.C. BENSON & SONS INC.
(UNOPPOSED) MOTION TO INTERVENE
County of Santa Cruz’s motion for leave to intervene is granted. Although the County
failed to attach the proposed complaint in intervention as required under Code of Civil Procedure
section 387, subdivision (c), the Court waives that defect. The complaint in intervention shall be
filed within 14 days of the hearing.
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.
Ruling
DALILAH VILLALOBOS, ET AL. VS FINAL TOUCH CONSTRUCTION & DESIGN, ET AL.
Jul 10, 2024 |
20STCV40002
Case Number:
20STCV40002
Hearing Date:
July 10, 2024
Dept:
28
Having set an order to show cause re: dismissal (settlement), the Court rules as follows.
BACKGROUND
On October 19, 2020, Plaintiffs Dalilah Villalobos, by and through her guardian ad litem Laura Eggleston, and Catalina Villalobos, by and through her guardian ad litem Maria Dominguez, filed this action against Defendants Final Touch Construction & Design, Luis Anthony Echeverria, Luis M. Echeverria, Chantra Sun, Lorraine Garcia, Gus Garcia, and Does 1-50 for wrongful death (motor vehicle negligence).
On October 20, 2020, the Court appointed Laura Eggleston to serve as guardian ad litem for Plaintiff Dalilah Villalobos.
On October 29, 2020, the Court appointed Maria Dominguez to serve as guardian ad litem for Catalina Villalobos.
On May 6, 2022, Defendants and Cross-Complainants
Final Touch Construction & Design, Luis Anthony Echeverria, and Luis M. Echeverria
filed an answer and a cross-complaint against Cross-Defendants Roes 1-25 for equitable/implied indemnity, apportionment and contribution, and declaratory relief.
On May 31, 2022, Defendant Chantra Sun filed an answer.
In addition, Cross-Complainant Chantra Sun, individually and as successor-in-interest to the Estate of Katrina Ariana Wilkins-Sun, filed a cross-complaint against Cross-Defendants
Final Touch Construction & Design, Luis Anthony Echeverria, Luis M. Echeverria, and Roes 1-100 for
negligence, wrongful death and survival action damages, equitable/implied indemnity, comparative contribution, apportionment, and tort of another.
On November 29, 2022 and January 4, 2023, the Court dismissed Defendants Lorraine Garcia and Gus Garcia without prejudice at Plaintiffs request.
On June 14, 2023, Cross-Complainant Chantra Sun filed a notice of unconditional settlement of the entire case on June 5, 2023.
On August 28, 2023, Plaintiffs counsel asked the Court for additional time to submit petitions for approval of minors compromises.
In response, the Court set an order to show cause re: dismissal (settlement) and a status conference re: filing of a petition to approve minors compromise for November 28, 2023.
On November 28, 2023, Plaintiffs counsel asked the Court for a continuance to finish negotiations on the Medi-Cal lien and to file petitions to approve minors compromises.
The Court continued the order to show cause re: dismissal (settlement) and the status conference re: filing of a petition to approve minor's compromise to March 8, 2024.
On March 8, 2024, Plaintiffs counsel did not appear, contact the Court to explain the non-appearance, file a petition to approve minors compromise, or submit a declaration showing good cause.
The Court continued the order to show cause re: dismissal (settlement) and status conference re: filing of a petition to approve minor's compromise to April 24, 2024 and ordered counsel to file a declaration at least two court days before April 24, 2024 regarding the status of the petitions and counsel's failure to appear.
On April 22, 2024, Plaintiffs counsel filed a declaration stating his failure to appear at the March 8, 2024 hearing was due to mistake, inadvertence and/or excusable neglect.
Counsel stated: (1) the matter had settled, (2) he was filing petitions to approve minors compromises, and (3) he had reserved hearings on the petitions for May 21, 2024.
Counsel asked the Court to continue the order to show cause re: dismissal (settlement) and status conference re: filing of a petition to approve minor's compromise for 90 days.
On April 24, 2024, the Court continued the order to show cause re: dismissal (settlement) and status conference re: filing of a petition to approve minor's compromise to May 28, 2024.
The Court ordered that the hearings on petitions to confirm minors compromise reserved for May 28, 2024 were to go forward and moving papers were to be filed timely.
On May 24, 2024, Plaintiffs counsel filed a declaration stating that he did not file the petitions to approve minors compromise timely because
"the guardian ad litems were still selecting the annuity structure for the respective claimants" and counsel was still waiting for fully executed annuity documents.
On
May 28, 2024
, the Court continued the order to show cause re: dismissal (settlement) and status conference re: filing of a petition to approve minor's compromise to July 10, 2024.
Plaintiffs have not filed petitions to approve minors compromises and have not submitted a new declaration showing good cause why the Court should not dismiss the action.
LEGAL STANDARD
Code of Civil Procedure section 583.410 provides:
(a) The court may in its discretion dismiss an action for delay in prosecution pursuant to this article on its own motion or on motion of the defendant if to do so appears to the court appropriate under the circumstances of the case.
(b) Dismissal shall be pursuant to the procedure and in accordance with the criteria prescribed by rules adopted by the Judicial Council.
(Code Civ. Proc., § 583.410.)
A discretionary dismissal under [Code of Civil Procedure section 583.410] (or for other delay in prosecution) is without prejudice to renewed litigation.
(L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶ 11:190.2, p. 11-83.)
California Rules of Court, rule 3.1385, provides in part:
(b) Dismissal of case
Except as provided in (c) or (d), each plaintiff or other party seeking affirmative relief must serve and file a request for dismissal of the entire case within 45 days after the date of settlement of the case. If the plaintiff or other party required to serve and file the request for dismissal does not do so, the court must dismiss the entire case 45 days after it receives notice of settlement unless good cause is shown why the case should not be dismissed.
* * *
(d) Compromise of claims of a minor or disabled person
If the settlement of the case involves the compromise of the claim of a minor or person with a disability, the court must not hold an order to show cause hearing under (b) before the court has held a hearing to approve the settlement, provided the parties have filed appropriate papers to seek court approval of the settlement.
(e) Request for additional time to complete settlement
If a party who has served and filed a notice of settlement under (a) determines that the case cannot be dismissed within the prescribed 45 days, that party must serve and file a notice and a supporting declaration advising the court of that party's inability to dismiss the case within the prescribed time, showing good cause for its inability to do so, and proposing an alternative date for dismissal. The notice and a supporting declaration must be served and filed at least 5 court days before the time for requesting dismissal has elapsed. If good cause is shown, the court must continue the matter to allow additional time to complete the settlement. The court may take such other actions as may be appropriate for the proper management and disposition of the case.
(Cal. Rules of Court, rule 3.1385, subds. (b), (d), (e).)
DISCUSSION
As noted, on June 14, 2023, Cross-Complainant Chantra Sun filed a notice of unconditional settlement of the entire case.
On August 28, 2023, Plaintiffs counsel confirmed the settlement by asking the Court for additional time to submit petitions to approve minors compromises.
The Court granted the continuance request and granted counsels subsequent continuance requests on November 28, 2023, April 24, 2024, and May 28, 2024.
It is now more than one year after the parties settled the case.
Under California Rules of Court, rule 3.1385(b), except as provided in subdivisions (c) or (d), the Court must dismiss the entire case 45 days after it receives notice of settlement unless good cause is shown why the case should not be dismissed.
(Cal. Rules of Court, rule 3.1385(b).)
Subdivision (c) of California Rules of Court, rule 3.1385, applies only to conditional settlements.
The notice of settlement here states the settlement was unconditional.
Therefore, subdivision (c) does not apply here.
Subdivision (d) of California Rules of Court, rule 3.1385, states that [i]f the settlement of the case involves the compromise of the claim of a minor or person with a disability, the court must not hold an order to show cause hearing under (b) before the court has held a hearing to approve the settlement,
provided the parties have filed appropriate papers to seek court approval of the settlement
.
(Cal. Rules of Court, rule 3.1385(d), emphasis added.)
Here, Plaintiffs have not filed appropriate papers to seek Court approval of the settlement.
Therefore, subdivision (d) does not prevent the Court from holding an order to show cause hearing.
The Court set the July 10, 2024 order to show cause hearing on May 28, 2024.
Plaintiffs have submitted no papers since May 28, 2024 demonstrating good cause why the case should not be dismissed.
The Court dismisses the case
under
Code of Civil Procedure section 583.410 and California Rules of Court, rule 3.1385(b).
CONCLUSION
Having issued an order to show cause re: dismissal (settlement) on May 28, 2024, and no good cause having been shown, the Court dismisses the case without prejudice
under Code of Civil Procedure section 583.410 and California Rules of Court, rule 3.1385(b).
The Court will give notice of this ruling.
Ruling
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY VS OLUTOYIN OLA TOMAKILI, ET AL.
Jul 11, 2024 |
Echo Dawn Ryan |
19STLC05734
Case Number:
19STLC05734
Hearing Date:
July 11, 2024
Dept:
26
State Farm v. Tomakili, et al.
MOTION TO VACATE DISMISSAL AND ENTER JUDGMENT PURSUANT TO STIPULATION
(CCP § 664.6)
TENTATIVE RULING:
Plaintiff State Farm Mutual Automobile Insurance Companys Motion to Enforce Settlement Agreement is GRANTED. JUDGMENT TO BE ENTERED IN PLAINTIFFS FAVOR AND AGAINST DEFENDANT OLUTOYIN OLA TOMAKILI IN THE AMOUNT OF $1,300.00 PRINCIPAL, PLUS $500.00 IN COSTS.
ANALYSIS:
On June 14, 2019, Plaintiff State Farm Mutual Automobile Insurance Company (Plaintiff) filed this subrogation action against Defendant Olutoyin Ola Tomakili (Defendant). Defendant filed an answer on August 16, 2019. On October 26, 2022,
Plaintiff filed a copy of the parties settlement agreement with a request for dismissal and retention of jurisdiction under Code of Civil Procedure section 664.6. The Court dismissed the action pursuant to the stipulation on November 15, 2022. (Order for Dismissal, 11/15/22.)
On April 17, 2024, Plaintiff filed the instant Motion to Vacate Dismissal, Enforce Settlement, and Enter Judgment. To date, no opposition has been filed.
Legal Standard
The instant motion is brought under Code of Civil Procedure, section 664.6, which states in relevant part:
If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.
(Code Civ. Proc., § 664.6, subd. (a).) Prior to January 1, 2021, parties under section 664.6 meant the litigants themselves, not their attorneys.
(
Levy v. Superior Court
(1995) 10 Cal.4th 578, 586.) The current statute provides that parties includes an attorney who represents the party and an insurers agent. (Code Civ. Proc., § 664.6, subd. (b).) The settlement must include the signatures of the parties seeking to enforce the agreement, and against whom enforcement is sought. (
J.B.B. Investment Partners, Ltd. v. Fair
(2014) 232 Cal.App.4th 974, 985.) The settlement agreement complies with the statutory requirements set forth above because it was signed by both parties and their attorneys. (Motion, Reese Decl., Exh. A, pp. 2-3.)
Furthermore, the request for retention of jurisdiction must be made in writing, by the parties, before the action is dismissed for the Courts retention of jurisdiction to conform to the statutory language. (
Wackeen v. Malis
(2002) 97 Cal.App.4th 429, 433 [If, after a suit has been dismissed, a party brings a section 664.6 motion for a judgment on a settlement agreement but cannot present to the court a request for retention of jurisdiction that meets all of these requirements, then enforcement of the agreement must be left to a separate lawsuit.].)
The parties request for retention of jurisdiction complies with these requirements because it was made in writing to the Court before the action was dismissed. (Motion, Reese Decl., Exh. A, ¶3.)
The settlement provides that Defendant would pay Plaintiff $12,400.00 through an initial payment from Defendants insurer of $10,000.0, followed by Defendants monthly payments starting on September 1, 2022. (
Id
. at Exh. A, ¶2.) The settlement agreement also provides that upon Defendants default, Plaintiff may seek judgment in the settlement amount, plus costs not to exceed $500.00, less any monies paid. (
Id
. at ¶3.) Payments of $11,100.00 were made towards the settlement, after which Defendant defaulted. (
Id
. at ¶¶4-5 and Exh. C.) Based on the foregoing, Plaintiff is entitled to entry of judgment against Defendant in the amount of $1,300.00 principal ($12,400.00 - $11,100.00) plus costs of $500.00. (
Id
. at ¶8.)
Conclusion
Plaintiff State Farm Mutual Automobile Insurance Companys Motion to Enforce Settlement Agreement is GRANTED. JUDGMENT TO BE ENTERED IN PLAINTIFFS FAVOR AND AGAINST DEFENDANT OLUTOYIN OLA TOMAKILI IN THE AMOUNT OF $1,300.00 PRINCIPAL, PLUS $500.00 IN COSTS.
Moving party to give notice.