Preview
TED
11290
Rancho
DANIEL WOOD,
LAW OFFICE
Pyrites Way
Telephone:
Facsimile:
E-Mail:
Counsel
OCOCONODUILQNA
Cordova,
OF
916-851-3770
SBN
NANCY VITALE
Suite
CA 95670
916-851-3750
ted.wood@zurichna.com
for Battery Systems,
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HARI KRISHNA, Case No. 165145
—\
A
Plaintiff, BATTERY SYSTEMS, INC.’S, REPLY TO
N
_.\
OPPOSITION OF RANDALL E. SMITH TO
(A)
vs. MOTION T0 QUASHIBARROWS MOTION;
DANIEL WOOD
.._\
DECLARATION OF TED
_\
b RANDALL SMITH; ON MARK MARINE;
MORNINGSTAR CORPORATION; and DATEI September 28, 2019
_\U1 DOES 1 TO 20 ’ (Per OST Granted 9/19-18)
TIME: 9:00 AM
O') DEPT: 1
_\
Defendants.
_\
\l ACTION FILED: OCTOBER 14, 2015
TRIAL DATES DECEMBER 10, 2018
_\(X)
In his Opposition, Defendant RANDALL SMITH (“Smith”) argues that Battery
_\
©
Systems, Inc. (“Battery Systems") has not been prejudiced by Plaintiffs 2 V: year delay in
NO
naming Battery Systems as a Doe Defendant because Smith is willing to agree to a
N —\
continued trial date. As shown herein, the 2 1A.year delay resulted in irreparable prejudice
NN
to Battery Systems as it no longer has rights to equitable indemnity from the potentially
|\) (.0
culpable party, the battery manufacturer.
NQ
l\.) O1
A. Battery Systems Has Been lrreparably Prejudiced By The Delay In The Loss 0f
Its Right To Indemnity Against The Culpable Party, The Battery Manufacturer.
|\) O)
Smith’s Opposition argues that his agreement to continue the trial date removes any
M \l
prejudice to Battery Systems‘ Smith is wrong to focus only on the trial date. Certainly, the
I\) OO
BATTERY SYSTEMS, moss, REPLY TO OPPOSITION OF RANDALL E. SMITH TO PAGE _1_
MOTION TO QUASHIBARROWS MOTION
current trial date creates substantial, procedural, prejudice; however, Plaintiff's delay in
naming Battery Systems for nearly 2 1/2 years after learning of their role in the stream of
commerce has resulted in an even more significant, irreparable, prejudice of a substantive
nature.
As a member of the stream of commerce relative to the allegedly defective batteries,
OQDGJNCDU'l-hOJNA
Battery Systems faces strict liability for the ‘allegedly defective batteries. (Greenman v.
Yuba Power Products, Inc., (1963) 59 Ca|.2d 57; Escola v. Coca Cola Bottling Co., (1944)
24 Ca|.2d 453.) It is well established in California that ". . . a consumer injured by a
defective product may sue any business entity in the chain of production and marketing,
from the original manufacturer down through the distributor and wholesaler to the
retailer.“ (Kaminski v. Western MacArthur 00., (1985) 175 Cal.App.3d 445, 455-56,
citing Becker v. IRM Corporation, (1985) 38 Ca|.3,d 454; Barth v. B. F. Goodrich Tire 00.,
(1968) 265 Cal.App.2d 228.)
With this imposed broad liability, California courts have consistently recognized the
right of the distributor or retailer of a defective product to seek indemnity from the
manufacturer, since this is one of the justifications for extending strict liability to the seliers
of products. (See, Far West Financial Corp v. D&S Co., (1988) 48 Ca|.3d 796, 813-814, fn
13.) “The
NNNNNNNNNAAAAAA-AA-A-L
doctrine of comparative equitable indemnity is designed to do equity among
defendants.” (GEM Developers v, Hal/craft Homes of San Diego, (1989) 213 Cal.App.3d
mflmU'l-bOJNAOCDmflmU'l-PCDNA
419, 426.) The purpose of equitable indemnification is to avoid the unfairness, under the
theory of joint and several liability, of holding one defendant liable for the plaintiff's entire
loss while allowing another potentially liable defendant to escape any financial responsibility
for the loss. (lbid.)
Here, as a passive retailer in the stream of commerce, Battery Systems should be
entitled to seek indemnity from the manufacturer of the allegedly defective batteries, Trojan
Battery Company, LLC (“Trojan”). To Battery Systems’ detriment, in the 2 1/2years since
Plaintiff learned the identities of Trojan and Battery Systems, Trojan has settled with
BATTERY SYSTEMS, INC/S, REPLY TO OPPOSITION OF RANDALL E. SMITH TO PAGE -2-
MOTION TO QUASHIBARROWS MOTION
Plaintiff and has received an order determining its settlement to be in good faith, pursuant
>
to California Code of Civil Procedure, section 877.6.
California's good faith settlement law, Code of Civil Procedure section 877.6,
protects settling defendants from the indemnity claims of non-settling defendants. The
statute was intended to promote the goals of encouraging settlements and sharing of
OCOCONOUU'ILOONA
litigation costs. A settling defendant is therefore able to extinguish the indemnity claims
against it with a judicial determination that the settlement was entered into in good faith. Per
Code of Civil Procedure section 877.6(0):
A determination by the court that the settlement was made in good faith shall
bar any other joint tortfeasor or c0 obligor from any further claims against the
settling tortfeasor or co-obligor for equitable comparative contribution, or
partial or comparative indemnity, based on comparative negligence or
comparative fault.
The Supreme Court ruled that a defendant who has entered into a good faith settlement
in accordance with the terms of California Code of Civil Procedure, Section 877.6 (c), is
absolved from further liability for all equitable indemnity claims. This includes claims by
vicariously or derivatively liable tortfeasors seeking total equitable indemnity, such as Battery
Systems in this case. (Far West Financial Corp. vs. D& S Co. (1988) 46 Ca|.3d 796, 817.)
Thus, in the instant case, Plaintiff’s delay of 2 1/2 years to name Battéry Systems as a
Doe defendant has denied Battery Systems, a passive participant in the stream of commerce,
NMNNNNNNNAA-LAA-k-AJAA
its rights to seek indemnity form the only potentially culpable party, the alleged negligent
mNQU'l-b-OJNAOQOGJNQU'ILOON-A
manufacturer of the batteries, Trojan, because Trojan has been granted a Good Faith
Settlement determination and is immune from any claim for indemnity by Battery Systems.
Plaintiffs’ 2 1/z year delay in naming Battery Systems as a Doe Defendant exposes
Battery Systems for the fullexposure of the damages caused by a third party with no right to
seek indemnity against that culpable third party. This creates a situation of irre'parable
prejudice in which Plaintiffs delay has placed Battery Systems is exactly the sort prejudice
which supports a request to strike/quash the Doe Amendment under Barrows and A.N.
BATTERY SYSTEMS, INC.’S, REPLY TO OPPOSITION OF RANDALL E. SMITH TO PAGE -3-
MOTION TO QUASHIBARROWS MOTION
CONCLUSION
Based on the foregoing, Battery Systems respectfully requests the Court find
Plaintiffs 2 1/2year delay in naming Battery Systems as a Doe Defendant on its Complaint
is an unreasonable delay which has resulted in the substantive and irreparable prejudice to
Battery Systems and enter an Order granting its motion, strike the Plaintiff's Doe
OQGJNQU'l-POONA
Amendment to Insert True Name of Fictitiously Named Defendant (CCP §474) and
determine that ithas no effect whatsoever in the present matter.
DATED: September 25, 2018 LAW OFFICE OF NANCY VITALE
TED DANIEL WOOD
Counsel for Defendant
Battery Systems, Inc.
NNNNNNNNNAAAAAAAAAA
OJNOUU'l-POONAOCOQNODUILOONA
BATTERY SYSTEMS, INC.’S, REPLY TO OPPOSITION OF RANDALL E. SMITH TO PAGE -4-
MOTION TO QUASHIBARROWS MOTION
PROOF OF SERVICE
[C.C.P. §§ 1013a AND 2015.5]
CASE NAME: KRISHNA v. SMITH, ET AL.
COURTI NO: BUTTE COUNTY SUPERIDR COURT#165145
I,the undersigned, declare as follows:
OCOOONCDU'l-POON-A
lam employed in the County of Sacramento, State of California. I am over the age of 18
and not a party to the within action; my business address is 11290 Pyrites Way, Suite 210,
Rancho Cordova, CA 95670-6338.
On this date | served the attached, BATTERY SYSTEMS, |NC.’S REPLY TO
OPPOSITION OF RANDALL E. SMITH TO MOTION TO QUASHIBARRQWS MOTION;
DECLARATION OF TED DANIEL WOOD
addressed as follows:
Counsel for Plaintiff Counsel for Def. Randall Smith
Louis G. Beary, Esq. Gavan R. Munter, Esq.
Scranton Law Firm Tiza Serrano Thompson & Assoc.
2450 Stanwell Dr. 980 9"‘ Street #2250
Concord, CA 94520 Sacramento, CA 95814
925-602-2727 916-561-2780
Fax: 925-676-9999 Fax: 1855-886-5559
Counsel for Def. Morning Star Corp. Counsel for X-Def. Trojan Battery
James r. Pagliero, Esq. Comgany, LLC
Pagliero & Assoc. Douglas M. Kilduff, Esq.
5701 Marconi Ave., Ste. A Ericksen Arbuthnot
Carmichael, CA 95608 100 Howe Ave., Ste. 110 South
916-481-7100 Sacramento, CA 95825
Fax: 916-481-7101 916-483-5181
NNNNNNNNN-A-AAAAAA-JAA
Fax: 916-483-7558
Counsel for Def.
OUNOCHLCJONAOQOCDNCDm-bOJNA
Steve Ahnmark
dba Ahnmark Marine
Marisa G. Huber, Esq.
Gibson Robb & Lindh LLP
201 Mission street #2700
San Francisco, CA 94105
415-348-6000
Fax: 415-348-6001
X (BY OVERNIGHT COURIER) By causing a true copy and/or original thereof to be
personally delivered via the following overnight courier service: Federal Express. [CCP
section 1013]
BATTERY SYSTEMS, INC.’S, REPLY TO OPPOSITION OF RANDALL E. SMITH TO PAGE -5-
MOTION TO QUASHIBARROWS MOTION
_
listed
(BY FACSIMILE)
parties. Said
| caused
transmission was
a true facsimile
reported as
to
complete
be electronically
and
transmitted
without error. A copy
to
of
the
the
transmission report shall be kept within the e-fax database of this company. The original of
this document will be served on the Document Depository herein via U.S. Postal Service
pursuant to the above paragraph if called for pursuant to Pre-Trial Order or Civil Code.
l declare under penalty of perjury under the laws of the State of California that the foregoing
is true and
OQOGJNQU'l-FOONA
correct. Executed on SEPTEMBER 26, 2018, at Rancho Cordova, California.
/4
‘Tl, m u
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f4 In”?
MARCI s. BA'KER
NNNNNNNNNAAAAAAAAAA
mflofifi-bCAJNAOCOCDNOUU'l-QWNA
BATTERY SYSTEMS, INC.’S, REPLY TO OPPOSITION OF RANDALL E. SMITH TO PAGE -6-
MOTION TO QUASHIBARROWS MOTION
Preview
TED 11290 Rancho DANIEL WOOD, LAW OFFICE Pyrites Way Telephone: Facsimile: E-Mail: Counsel OCOCONODUILQNA Cordova, OF 916-851-3770 SBN NANCY VITALE Suite CA 95670 916-851-3750 ted.wood@zurichna.com for Battery Systems, SUPERIOR 210 191768 |nc., COURT FOR THE Doe OF 2 THE COUNTY STATE OF F | L E D By OF é BUTTE El'w'w 50”" 9/26/2018 Klmuewmm of Cahmm'a CW“! 0‘ Bum 'L'"“""””““'H h} CALIFORNIA F L E D | Deputy __\ ‘ HARI KRISHNA, Case No. 165145 —\ A Plaintiff, BATTERY SYSTEMS, INC.’S, REPLY TO N _.\ OPPOSITION OF RANDALL E. SMITH TO (A) vs. MOTION T0 QUASHIBARROWS MOTION; DANIEL WOOD .._\ DECLARATION OF TED _\ b RANDALL SMITH; ON MARK MARINE; MORNINGSTAR CORPORATION; and DATEI September 28, 2019 _\U1 DOES 1 TO 20 ’ (Per OST Granted 9/19-18) TIME: 9:00 AM O') DEPT: 1 _\ Defendants. _\ \l ACTION FILED: OCTOBER 14, 2015 TRIAL DATES DECEMBER 10, 2018 _\(X) In his Opposition, Defendant RANDALL SMITH (“Smith”) argues that Battery _\ © Systems, Inc. (“Battery Systems") has not been prejudiced by Plaintiffs 2 V: year delay in NO naming Battery Systems as a Doe Defendant because Smith is willing to agree to a N —\ continued trial date. As shown herein, the 2 1A.year delay resulted in irreparable prejudice NN to Battery Systems as it no longer has rights to equitable indemnity from the potentially |\) (.0 culpable party, the battery manufacturer. NQ l\.) O1 A. Battery Systems Has Been lrreparably Prejudiced By The Delay In The Loss 0f Its Right To Indemnity Against The Culpable Party, The Battery Manufacturer. |\) O) Smith’s Opposition argues that his agreement to continue the trial date removes any M \l prejudice to Battery Systems‘ Smith is wrong to focus only on the trial date. Certainly, the I\) OO BATTERY SYSTEMS, moss, REPLY TO OPPOSITION OF RANDALL E. SMITH TO PAGE _1_ MOTION TO QUASHIBARROWS MOTION current trial date creates substantial, procedural, prejudice; however, Plaintiff's delay in naming Battery Systems for nearly 2 1/2 years after learning of their role in the stream of commerce has resulted in an even more significant, irreparable, prejudice of a substantive nature. As a member of the stream of commerce relative to the allegedly defective batteries, OQDGJNCDU'l-hOJNA Battery Systems faces strict liability for the ‘allegedly defective batteries. (Greenman v. Yuba Power Products, Inc., (1963) 59 Ca|.2d 57; Escola v. Coca Cola Bottling Co., (1944) 24 Ca|.2d 453.) It is well established in California that ". . . a consumer injured by a defective product may sue any business entity in the chain of production and marketing, from the original manufacturer down through the distributor and wholesaler to the retailer.“ (Kaminski v. Western MacArthur 00., (1985) 175 Cal.App.3d 445, 455-56, citing Becker v. IRM Corporation, (1985) 38 Ca|.3,d 454; Barth v. B. F. Goodrich Tire 00., (1968) 265 Cal.App.2d 228.) With this imposed broad liability, California courts have consistently recognized the right of the distributor or retailer of a defective product to seek indemnity from the manufacturer, since this is one of the justifications for extending strict liability to the seliers of products. (See, Far West Financial Corp v. D&S Co., (1988) 48 Ca|.3d 796, 813-814, fn 13.) “The NNNNNNNNNAAAAAA-AA-A-L doctrine of comparative equitable indemnity is designed to do equity among defendants.” (GEM Developers v, Hal/craft Homes of San Diego, (1989) 213 Cal.App.3d mflmU'l-bOJNAOCDmflmU'l-PCDNA 419, 426.) The purpose of equitable indemnification is to avoid the unfairness, under the theory of joint and several liability, of holding one defendant liable for the plaintiff's entire loss while allowing another potentially liable defendant to escape any financial responsibility for the loss. (lbid.) Here, as a passive retailer in the stream of commerce, Battery Systems should be entitled to seek indemnity from the manufacturer of the allegedly defective batteries, Trojan Battery Company, LLC (“Trojan”). To Battery Systems’ detriment, in the 2 1/2years since Plaintiff learned the identities of Trojan and Battery Systems, Trojan has settled with BATTERY SYSTEMS, INC/S, REPLY TO OPPOSITION OF RANDALL E. SMITH TO PAGE -2- MOTION TO QUASHIBARROWS MOTION Plaintiff and has received an order determining its settlement to be in good faith, pursuant > to California Code of Civil Procedure, section 877.6. California's good faith settlement law, Code of Civil Procedure section 877.6, protects settling defendants from the indemnity claims of non-settling defendants. The statute was intended to promote the goals of encouraging settlements and sharing of OCOCONOUU'ILOONA litigation costs. A settling defendant is therefore able to extinguish the indemnity claims against it with a judicial determination that the settlement was entered into in good faith. Per Code of Civil Procedure section 877.6(0): A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor or c0 obligor from any further claims against the settling tortfeasor or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault. The Supreme Court ruled that a defendant who has entered into a good faith settlement in accordance with the terms of California Code of Civil Procedure, Section 877.6 (c), is absolved from further liability for all equitable indemnity claims. This includes claims by vicariously or derivatively liable tortfeasors seeking total equitable indemnity, such as Battery Systems in this case. (Far West Financial Corp. vs. D& S Co. (1988) 46 Ca|.3d 796, 817.) Thus, in the instant case, Plaintiff’s delay of 2 1/2 years to name Battéry Systems as a Doe defendant has denied Battery Systems, a passive participant in the stream of commerce, NMNNNNNNNAA-LAA-k-AJAA its rights to seek indemnity form the only potentially culpable party, the alleged negligent mNQU'l-b-OJNAOQOGJNQU'ILOON-A manufacturer of the batteries, Trojan, because Trojan has been granted a Good Faith Settlement determination and is immune from any claim for indemnity by Battery Systems. Plaintiffs’ 2 1/z year delay in naming Battery Systems as a Doe Defendant exposes Battery Systems for the fullexposure of the damages caused by a third party with no right to seek indemnity against that culpable third party. This creates a situation of irre'parable prejudice in which Plaintiffs delay has placed Battery Systems is exactly the sort prejudice which supports a request to strike/quash the Doe Amendment under Barrows and A.N. BATTERY SYSTEMS, INC.’S, REPLY TO OPPOSITION OF RANDALL E. SMITH TO PAGE -3- MOTION TO QUASHIBARROWS MOTION CONCLUSION Based on the foregoing, Battery Systems respectfully requests the Court find Plaintiffs 2 1/2year delay in naming Battery Systems as a Doe Defendant on its Complaint is an unreasonable delay which has resulted in the substantive and irreparable prejudice to Battery Systems and enter an Order granting its motion, strike the Plaintiff's Doe OQGJNQU'l-POONA Amendment to Insert True Name of Fictitiously Named Defendant (CCP §474) and determine that ithas no effect whatsoever in the present matter. DATED: September 25, 2018 LAW OFFICE OF NANCY VITALE TED DANIEL WOOD Counsel for Defendant Battery Systems, Inc. NNNNNNNNNAAAAAAAAAA OJNOUU'l-POONAOCOQNODUILOONA BATTERY SYSTEMS, INC.’S, REPLY TO OPPOSITION OF RANDALL E. SMITH TO PAGE -4- MOTION TO QUASHIBARROWS MOTION PROOF OF SERVICE [C.C.P. §§ 1013a AND 2015.5] CASE NAME: KRISHNA v. SMITH, ET AL. COURTI NO: BUTTE COUNTY SUPERIDR COURT#165145 I,the undersigned, declare as follows: OCOOONCDU'l-POON-A lam employed in the County of Sacramento, State of California. I am over the age of 18 and not a party to the within action; my business address is 11290 Pyrites Way, Suite 210, Rancho Cordova, CA 95670-6338. On this date | served the attached, BATTERY SYSTEMS, |NC.’S REPLY TO OPPOSITION OF RANDALL E. SMITH TO MOTION TO QUASHIBARRQWS MOTION; DECLARATION OF TED DANIEL WOOD addressed as follows: Counsel for Plaintiff Counsel for Def. Randall Smith Louis G. Beary, Esq. Gavan R. Munter, Esq. Scranton Law Firm Tiza Serrano Thompson & Assoc. 2450 Stanwell Dr. 980 9"‘ Street #2250 Concord, CA 94520 Sacramento, CA 95814 925-602-2727 916-561-2780 Fax: 925-676-9999 Fax: 1855-886-5559 Counsel for Def. Morning Star Corp. Counsel for X-Def. Trojan Battery James r. Pagliero, Esq. Comgany, LLC Pagliero & Assoc. Douglas M. Kilduff, Esq. 5701 Marconi Ave., Ste. A Ericksen Arbuthnot Carmichael, CA 95608 100 Howe Ave., Ste. 110 South 916-481-7100 Sacramento, CA 95825 Fax: 916-481-7101 916-483-5181 NNNNNNNNN-A-AAAAAA-JAA Fax: 916-483-7558 Counsel for Def. OUNOCHLCJONAOQOCDNCDm-bOJNA Steve Ahnmark dba Ahnmark Marine Marisa G. Huber, Esq. Gibson Robb & Lindh LLP 201 Mission street #2700 San Francisco, CA 94105 415-348-6000 Fax: 415-348-6001 X (BY OVERNIGHT COURIER) By causing a true copy and/or original thereof to be personally delivered via the following overnight courier service: Federal Express. [CCP section 1013] BATTERY SYSTEMS, INC.’S, REPLY TO OPPOSITION OF RANDALL E. SMITH TO PAGE -5- MOTION TO QUASHIBARROWS MOTION _ listed (BY FACSIMILE) parties. Said | caused transmission was a true facsimile reported as to complete be electronically and transmitted without error. A copy to of the the transmission report shall be kept within the e-fax database of this company. The original of this document will be served on the Document Depository herein via U.S. Postal Service pursuant to the above paragraph if called for pursuant to Pre-Trial Order or Civil Code. l declare under penalty of perjury under the laws of the State of California that the foregoing is true and OQOGJNQU'l-FOONA correct. Executed on SEPTEMBER 26, 2018, at Rancho Cordova, California. /4 ‘Tl, m u ~ f4 In”? MARCI s. BA'KER NNNNNNNNNAAAAAAAAAA mflofifi-bCAJNAOCOCDNOUU'l-QWNA BATTERY SYSTEMS, INC.’S, REPLY TO OPPOSITION OF RANDALL E. SMITH TO PAGE -6- MOTION TO QUASHIBARROWS MOTION