Preview
FILED: NEW YORK COUNTY CLERK 04/02/2019 03:07 PM INDEX NO. 190004/2014
NYSCEF DOC. NO. 154 RECEIVED NYSCEF: 04/02/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
IN RE: NEW YORK COUNTY IN.Y.C.A.L.
ASBESTOS LITIGATION : I.A.S. Part 13
: (Mendez, J.)
This document relates to:
CAROL LATORRE, as Administratrix for the Estate Index N o . : 190004/2014
of BASIL J. LATORRE, and CAROL LATORRE,
Individually, February 2 0 1 6 FIFO
Weitz & Luxenberg, P . C .
Plaintiffs,
REPLY AFFIRMATION IN
-against- FURTHER SUPPORT OF
RAIN BIRD CORPORATION'S
A.O. SMITH WATER PRODUCTS, CO., et al. MOTION FOR SUMMARY
JUDGMENT
Defendants
Matthew D. Sampar, an attorney licensed to practice law in the Courts of the State of
New York, hereby affirms under penalties of perjury as follows:
1. I am a partner with the law firm of McGivney, Kluger & Cook, P.C., counsel for
defendant, Rain Bird Corporation ("Rain Bird") in the above-captioned action. Unless otherwise
stated, this Affirmation is made upon information and belief based upon a review of the files
maintained in this action.
2. This Reply Affirmation is submitted in further support of Rain Bird's motion for
summary judgment pursuant to Civil Practice Law and Rules ("CPLR") § 3212 and Paragraph
XXI of the New York City Asbestos Litigation ("NYCAL") Case Management Order ("CMO").
PRELIMINARY STATEMENT
3. Rain Bird established its prima facie entitlement to judgment as a matter of law
by unequivocally showing that a product for which itis liable could not have contributed to the
causation of decedent's injury. Through the materials annexed to Rain Bird's motion for
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summary judgment (including the affidavit of Frank Busam and the supporting documents
thereto), Rain Bird demonstrated its entitlement to summary judgment because the record
unequivocally established that (1) Rain Bird has no liability for Hammond valves sold before
June 8, 1984, or in inventory as of June 8, 1984, and (2) to the extent that there are allegations of
asbestos exposure through the removal of external insulation from Hammond valves which were
potentially manufactured after June 8, 1984, Rain Bird did not manufacture, recommend or
supply any external insulation - Hammond valves were intended to function, and did function,
without external insulation.
4. Plaintiffs first oppose Rain Bird's motion for summary judgment on the basis that
New York state tort law is displaced on the basis that (1) "Indiana state law governs the
successor liability issues connected to Rain Bird's 1984 acquisition of Hammond Valves", and
(2) because Indiana state law follows the "product line successor rule", "under the product line
successor rule, Rain Bird is liable for Mr. Latorre's injuries resulting from his exposure to
asbestos from Hammond Valve products." Plaintiffs' Opposition, 115-6.
5. Plaintiffs concede that under New York's successor liability rules, Rain Bird is
not liable for Hammond Indiana's products. Plaintiffs' only opposition is that their lawsuit
against Rain Bird is bound and limited by a contract that they were not a party to. However, the
parties to the Asset Purchase and Sale Agreement determined that Indiana law would apply to
any breach of contract action between themselves (and not non-parties such as Mr. Latorre).
Plaintiffs do not assert that the law of any state other than Indiana should define the legal
principles and standard of care owed to a non-party to a contract, such as Mr. Latorre, nor do
plaintiffs contend that the Court should engage in any kind of choice-of-law analysis.
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6. Plaintiffs next oppose Rain Bird's motion for summary judgment on the basis that
Rain Bird cannot support the claim that it did not manufacture, recommend or supply any
external insulation for use with Hammond valves, and that Hammond valves were intended to
function, and did function, without external insulation through reliance on Mr. Busam's
Affidavit, as his Affidavit is not founded on the requisite degree of personal knowledge and is
not supported by documentation as pertains to Hammond valves prior to 1984. See Plaintiffs'
Opposition, ,i 7.
7. However, Rain Bird has already established that it is not liable for Hammond
valves sold before June 8, 1984, or in inventory as of June 8, 1984. Mr. Busam's personal
knowledge on issues prior to that date, or issues involving Hammond Indiana, is irrelevant to the
Court's analysis. Rather, the uncontroverted and unrebutted evidence demonstrates that Mr.
Busam worked for Hammond California from June 8, 1984, onwards, and ran the Hammond
California facility in Indiana, from June 8, 1984, onwards. Likewise, the uncontroverted and
unrebutted evidence demonstrates that Mr. Busam was Hammond California's Vice President
and the General Manager of the Hammond facility in Indiana until Hammond California's sale to
Prairie Manufacturing Corporation in 1991. It is unclear who could have been in a better
position to recount the practices and policies of Hammond California than Mr. Busam, the man
who created and administered such practices and policies.
8. Accordingly, we will address each of plaintiffs' counsel's contentions in turn, and
show why plaintiffs' opposition fails to rebut Rain Bird's prima facie entitlement to summary
judgment.
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ARGUMENT
I. The contractual choice-of-law provision in the 1984 Asset Purchase and Sale
Agreement does not displace the routine application of New York tort law as to
plaintiffs' tort claims against Rain Bird.
9. As an initial matter, we note that the Asset Purchase and Sale Agreement relied
upon by Rain Bird acknowledges that "[t]his Agreement, together with all schedules, exhibits,
certificates and documents delivered in connection herewith or referenced to herein, contains the
entire agreement between the parties hereto with respect to the transactions contemplated
herein . . . "
Ex. F, � 2 1 , "ENTIRE AGREEMENT" (emphasis added).
10. Part of the "entire agreement between the parties" includes the agreement that the
contract "shall be construed and enforced in accordance with the laws of the State of Indiana."
Ex. F, � 22, "CONSTRUCTION".
11. Plaintiffs claim that the routine application of New York state tort law should be
displaced by a provision in a contract that plaintiffs were not a party to. Plaintiffs, non-parties to
the contract, argue that Indiana state law applies to the issue of successor liability because the
choice-of-law provision in the 1984 agreement between Hammond Indiana, Condec, Rain Bird,
and HVC Acquiring stated that "[t]his Agreement shall be construed and enforced in accordance
with the laws of the State oflndiana." Ex. F, � 22, "CONSTRUCTION".
12. However, in New York, choice-of-law provisions between parties to an agreement
are not binding and enforceable with respect to a non-party to that agreement, such as Mr.
Latorre. See Lippens v. Winkler Intl. Corp., 47 Misc.3d 1224(A), 2015 N.Y. Misc. LEXIS 1873
(N.Y. Sup. Ct., Monroe Cty., May 19, 20l5)(citing Hodom v. Stearns, 32 A.D.2d 234, 236 (4th
Dept. 1 9 6 9 ) ; JA.O.
Acquisition Corp. v. Stavitsky, 192 Misc.2d 7, 11 (N .Y. Sup. Ct., New York
C ty . ,
N ovember 14, 2001), aff'd, 293 A. D .2d 323 (1st D ept. 2002 ) ). New York State courts are
reluctant to "to construe contractual choice-of-law clauses broadly to encompass extra-
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contractual causes of action", and generally find that tort claims, whether brought by a party to a
contract, or an unrelated third party (such as Mr. Latorre), fall outside of such provisions. Fin.
One Pub. Co. v. Lehman Bros. Special Fin., Inc., 414 F.3d 325, 334 (2d Cir. 2005), cert. denied,
548 U.S. 904 (2006).
13. For example, in a case where a contract's choice-of-law provision designated that
New Yark law governed the contract, and one of the parties subsequently filed suit alleging a
contractual cause of action and a tort cause of action based on Florida's civil RICO statute, the
Court affirmed the denial of a motion to dismiss the Florida-based tort cause of action, because
"the contractual choice of law provision does not govern the law to be applied to [the tort] cause
of action." Twinlab Corp. v. Paulson, 283 A.D.2d 570, 571 (2d Dept. 2001). See also Gutstadt
v. National Fin. Partners Corp., 2013 N.Y. Misc. LEXIS 5054 (N.Y. Sup. Ct., New York Cty.,
October 22, 2013)(choice-of-law clause governing interpretation of contract did not govern law
for breach of fiduciary duty, fraud, and unjust enrichment causes of action); Knierieman v. Bache
Halsey Stuart Shields, Inc., 74 A.D. 290 (1st Dept. 1980), appeal dismissed 50 N.Y.2d 1021
(N. Y. 1 9 8 0 ) ( choice-of-lawprovision in contract did not bind the parties as to causes of action
sounding in tort).
14. Indeed, under New Yark law, generally the only way that a non-party to a
contract can seek to enforce the terms or provisions of a contract are when that non-party is a
third party beneficiary to the contract. In other words, a "contractual obligation, standing alone,
will generally not give rise to tort liability in favor of a third party . . . [b ]efore
an injured party
may recover as a third-party beneficiary for failure to perform a duty imposed by contract, it
must clearly appear from the provisions of the contract that the parties thereto intended to confer
a direct benefit on the alleged third-party beneficiary to protect him or her from physical injury."
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Diano v. RPS Corp., 2016 N.Y. Misc. LEXIS 2550 (N.Y. Sup. Ct., New York Cty., July 6,
2016); see also Dormitory Auth. Of the State of N Y v. Samson Constr. Co., 30 N.Y.3d 704
(N.Y. 2018)(reaffirming that a third party's right to enforce a contract is limited to where the
third party is the only one who could recover for breach of contract or when it is otherwise clear
from the language of the contract that there was an intent to permit enforcement by the third
party).
15. Here, plaintiffs are bringing tort claims against Rain Bird. Plaintiffs are not a
party to the contract at issue, the 1984 Asset Purchase and Sale Agreement. Only Hammond
Indiana, Condec, Rain Bird, and HVC Acquiring were parties to that contract. Nor do plaintiffs
somehow claim to be third party beneficiaries to the contract, or that somehow they were injured
by a failure to perform a duty imposed by 1984 Asset Purchase and Sale Agreement. Even if
they claimed to be a third party beneficiary to the contract, they are certainly not the only party
who could recover from a hypothetical breach of the contract. Likewise, even if they claimed to
be a third party beneficiary to the contract, there is no language in the 1984 Asset Purchase and
Sale Agreement that evinces an intent to permit their enforcement of the provisions of the
contract. Despite plaintiffs' claims to the contrary, New York tort law is not displaced by virtue
of the choice-of-law provision in the 1 9 8 4 Asset Purchase and Sale Agreement.
16. The primary authority relied upon by plaintiffs' counsel is both easily
distinguishable from the matter at hand, and still in harmony with the above-cited law. In
Ministers & Missionaries Ben. Bd. v. Snow, 26 N.Y.3d 466 (N.Y. 2015), the Court of Appeals
opined on the narrow issue of whether when parties include a New York choice-of-law provision
in a contract that does not fall under General Obligations Law § 5-1401, such a provision
demonstrates that parties' intent that court not conduct a conflict-of-laws analysis. Ministers &
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Missionaries Ben. Bd., 26 N.Y.3d at 468. That matter has no bearing on this case precisely
because it involves litigation between the parties to a contract (in that case, a New York not-for
profit corporation that administered retirement plans and death benefit plans, the estate of an
enrollee said plans, and the primary and contingent beneficiaries of said plans), not litigation
involving tort claims by non-parties to a contract (as is the case here).
17. The same is true as to Boss v. American Exp. Financial Advisors, Inc., 15 A.D.3d
306 ( 1 s t Dept.2005), aff'd 6 N . Y . 3 e 242(N.Y. 2006). Boss has no bearing on this case precisely
because it involves litigation between the parties to a contract - there, plaintiff financial advisors
who entered into employment agreements with defendant corporations. Boss, 15 A.D.3d, 307.
Boss does not involve a lawsuit sounding in tort by non-parties to a contract brought against a
party to a contract, such plaintiffs' lawsuit against Rain Bird.
18. Your Honor's decision in the Gonzalez matter does not conflict with the
conclusion that New York tort law is not displaced by virtue of the choice-of-law provision in
the 1 9 8 4 Asset Purchase and Sale Agreement. In that case, despite a defendant's invocation of a
choice-of-law provision in a contract to support the argument that another state's tort law
applied, and thus relieved that defendant of liability, the choice-of-law provision was irrelevant,
and a determination of liabilities was a simple matter of New York's law regarding the
interpretation of contracts. Indeed, as plaintiffs concede, although your Honor acknowledged
that the contract at issue in Gonzalez was governed by the law of another state due to the
contract's choice-of-law provision, ultimately, New York state law applied as to the tort claims
brought by plaintiff, a non-party to the contract at issue. See Plaintiffs' Opposition, at FN 1.
19. In Gonzalez, plaintiff, a non-party to a series of contracts involving defendant
Ford and other parties, brought tort claims against Ford for asbestos-related personal injuries,
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and moved for partial summary judgment for a finding that Ford was the legal successor to the
other parties in the series of contracts, and therefore potentially liable to plaintiff See Gonzalez
v. 3M Co., 2018 N.Y. Misc. LEXIS 2457 (N.Y. Sup. Ct., New York Cty., June 20, 2018). Ford
attempted to disclaim potential liability to plaintiff by pointing to, among other things, a choice-
of-law provision in a contract providing that Pennsylvania law governed, and arguing that
because Pennsylvania law governed, Pennsylvania's "product line successor rule" should apply,
and the other party to the contract should be deemed liable to plaintiff for his asbestos-related
personal injuries. Id. at * 17. Your Honor acknowledged that the contract was governed by
Pennsylvania law, but also found that Pennsylvania's "product line successor rule" did not apply
to the tort claims at issue. Id. at *17-18. Rather, cognizant of the Court of Appeals holding in
Semenetz'; your Honor found that a reading of all the agreements, as guided by New York law
related to the interpretation of contracts, merely demonstrated that Ford ultimately retained the
liabilities for asbestos-related personal injuries. Id. at * 1 8 - 2 0 .
20. Lippens, supra, is instructive. In that matter, the plaintiff, a New York state
resident, commenced a products liability action in New York for injuries sustained while
operating a bread-making machine in Rochester, New York. Lippens, 2015 N.Y. Misc. LEXIS
at *3-4 The machine was manufactured by a German company, Winkler GmbH, certain assets
of whose were later purchased by an American company, Bakery Engineering. Id. at *4-5.
Initially, plaintiff claimed that New Jersey law governed the matter based on the choice-of-law
provision in the Asset Sale Agreement between Winkler and Bakery Engineering. Id. at *20-21.
The Court disregarded plaintiffs assertion that New Jersey law was controlling, opining that the
language in the choice-of-law provision was "appropriate for a contract dispute situation . . . but
1
"[A]s stated by the New York Court of Appeals in Semenetz, 'extending liability to the corporate successor places
responsibility for a defective product on a party that did not put the product into the stream of commerce [ which]is
Id. at
inconsistent with the basic justification for products liability."' * 18.
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not a tort liability scenario . . . . [i]t
is not reasonable to allow a contract to define the legal
principles and standard of care owed to a non-party such as the present Plaintiff." Id. at * 2 1 .
21. Similarly, in this matter, it is not reasonable to allow a contract to define the legal
principles and standard of care owed to non-parties such as plaintiffs. After all, Mr. Latorre was
a life-long New York resident bringing a lawsuit sounding in tort in a New York court for
injuries sustained in New York. See generally, Ex. D. Therefore, Rain Bird has unequivocally
established its prima facie entitlement to summary judgment because Rain Bird did not acquire
tort or product liabilities in the Asset Purchase and Sale Agreement. Plaintiffs have not shown
that one of the four limited exceptions to the Schumacher rule applies - or, put another way,
plaintiffs did not rebut Rain Bird's establishment of its prima facie entitlement to summary
judgment on the issue of successor liability.
II. Rain Bird has established its prima facie entitlement to summary judgment on
the issue of whether it has a duty to warn of the use of asbestos-containing
exterior insulation on Hammond valves manufactured after June 8, 1984, and
plaintiffs did not meet their burden of rebutting same.
22. First, this case is not about asbestos-containing gaskets, as plaintiffs state in their
opposition. See Plaintiffs' Opposition, 11 8, 36. This case is about asbestos-containing exterior
insulation, the only source of Mr. Latorre's alleged asbestos exposure from a Hammond valve.
In fact, the fact witness, Mr. Timpone, was specifically asked whether there was exposure
through internal valve components, such as gaskets, and Mr. Timpone explicitly denied any such
exposure:
Q. Why would you be exposed to asbestos on the Hammond
valves?
A. We replaced many valves and we replaced like for like,
exactly the same to exactly the same so you didn't have to
change anything.
Q. Where would the asbestos be on the Hammond valves?
A. On the body.
Q. This would be an external insulation?
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A. Yes.
Q. Do you believe you were exposed to asbestos from any
internal components of Hammond valves?
A. No.
Ex. D, 380:8-21.
23. In sum, Mr. Timpone did not claim any further exposure from Hammond valves
other than from the removal of exterior asbestos insulation - there are no allegations at all of any
work with, or exposure through, asbestos-containing gaskets associated with Hammond valves.
24. Second, this case is not about Mr. Busam's personal knowledge of what
Hammond Indiana manufactured, recommended or supplied, or what hypothetical component
parts Hammond Indiana required Hammond valve to utilize in order to properly function. Rain
Bird has already demonstrated that it is not liable for any Hammond valves sold prior to June 8,
1984, or in inventory on June 8, 1984. Mr. Busam's personal knowledge of Hammond valves
prior to that date is not relevant to the Court's analysis. That "Mr. Busam's affidavit offers no
explanation whatsoever (such as reviewed records) as to how he would have any basis of
knowledge regarding the specifications of Hammond Valves prior to the 1984 purchase by Rain
Bird, and whether 'as a matter of design, mechanics or economic necessity, [external asbestos-
containing insulation was] necessary to enable [its] product to function as intended . . . " '
(Plaintiffs' Opposition, ,r34, citing Dummitt v. A. W. Chesterton, 27 N . Y . 3 d
765, 793 (2016)) is
utterly irrelevant. What is relevant to the Court's analysis isMr. Busam's personal knowledge of
Hammond valves manufactured after June 8, 1984 - after consummation of the 1984 Asset
Purchase and Sale Agreement'.
2
Plaintiffsincorrectly posit that the 1984 agreement was "merger", rather than an asset sale, a characterization of
the transaction that has far differentlegal consequences than those at issue here. See Plaintiffs' Opposition, � 7.
Suffice to say, it is facially unambiguous that 1 9 8 4 agreement was an asset sale, and not a merger.
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25. As demonstrated above, and in Rain Bird's motion-in-chief, the uncontroverted
and unrebutted evidence demonstrates that Mr. Busam worked for Hammond California from
June 8, 1984, onwards, and ran the Hammond California facility in Indiana, from June 8, 1984,
onwards. Likewise, the uncontroverted and unrebutted evidence demonstrates that Mr. Busam
was Hammond California's Vice President and the General Manager of the Hammond facility in
Indiana until Hammond California's sale to Prairie Manufacturing Corporation in 1991. It is
unclear who could have been in a better position to recount the practices and policies of
Hammond California than Mr. Busam, the man who created and administered such practices and
policies.
26. As former NYCAL Coordinating Judge Justice Peter Moulton (now Associate
Justice of the Appellate Division, First Department) recognized in terms of a defendant
establishing its primafacie entitlement to summary judgment
An affidavit from a corporate representative which is "conclusory
and without specific factual basis" does not meet the burden
(Matter of New York City Asbestos Litig. (DiSalvo), 123 A.D.3d
498, 1 N.Y.S.3d 20 [1st Dept. 2014]). By contrast, in Root v.
Eastern Refractories, Co. (13 A.D.3d 1187, 787 N . Y . S . 2 d 5 8 6
[4th
Dept. 2004 ]), an affidavit from a corporate employee who worked
for the defendant since 1948, which stated that the company did
not supply any asbestos-containing products to Syracuse
University during the relevant time, is sufficient to meet the burden
of proof.
Matter of New York City Asbestos Litig. (Galasso), 2015 N.Y. Misc. LEXIS 2886
(N.Y. Sup. Ct., New York Cty., August 6, 2 0 1 5 )
27. Here, like the defendant in Root, Rain Bird has established its prima facie
entitlement to summary judgment through the affidavit of a corporate employee who worked for
the defendant throughout the relevant time period (in this case, 1 9 8 4 to1 9 9 1 ).
Unlike Root, after
the burden shift, plaintiffs have not shown facts and conditions from which the defendant's
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liability may be reasonably inferred - plaintiffs have not come forward with any evidence
creating a reasonable inference that plaintiff was exposed to a specific defendant's product.
28. Rather, as argued in Rain Bird's motion-in-chief, this case is comparable to
Peraica, where defendant Taco established its prima facie entitlement to summary judgment
through the affidavit of its corporate representative, who had worked for Taco from 1974
through the time Taco's motion for summary judgment was made, in positions related to the
design and manufacture of Taco's pump products. Taco's corporate representative's testimony,
through his affidavit, was that asbestos-containing exterior insulation (the sole asbestos
containing product at issue in Peraica, which was manufactured and supplied by third parties,
not Taco) was unnecessary for Taco pumps to function as they were designed to function. Thus
Taco never specified, supplied or recommended the use of asbestos-containing external
insulation for any of its pumps. Once Taco established itsprima facie entitlement to summary
judgment, plaintiff was unable to rebut same. Accordingly, using principles analogous to the
Court of Appeals analysis in Dummitt, the court granted Taco summary judgment, just as the
Court should grant Rain Bird summary judgment in this matter.
CONCLUSION
29. Based upon the foregoing reasons, Rain Bird is entitled to summary judgment as a
matter of law dismissing this matter and all cross-claims against iton the grounds that Rain Bird
is not liable to plaintiffs for injury resulting from any asbestos exposure from Hammond valves.
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WHEREFORE, defendant Rain Bird respectfully requests that the Court grants its
motion for summary judgment in its entirety, and issue an Order dismissing, with prejudice,
Plaintiffs' Complaint and all cross-claims against Rain Bird, and for such other and further relief
as this Court may deem just and proper.
Dated: New York, New York
April 2, 2019
McGIVNEY, KLUGER & COOK, P . C .
Attorneys for Defendant
RA � RP �
By:
Matthew D. Sampar, Esq.
80 Broad Street, 23rd Floor
New York, New York 10004
(212) 509-3456
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Motion to be Relieved as Plaintiffs Counsel
TENTATIVE RULING
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.).
Counsel is ordered to give notice of this ruling and file proof of service of same within five calendar days.
BACKGROUND
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 [
sic
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Code section 1698, violation of California Civil Code section 1632, violation of the Song-Beverly Consumer Warranty [
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On September 5, 2023, Ben Roberts of Law Office of Ben Roberts moved to be relieved as counsel for Plaintiffs. Plaintiffs have not opposed the motion.
On March 25, 2024, the Court denied the motion without prejudice.
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
(1994) 21 Cal.App.4th 904, 915;
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).)
The requisite forms must be served on the client and on all parties that have appeared in the case. (Cal. Rules of Court, Rule 3.1362, subd. (d).)
DISCUSSION
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
(1987) 188 Cal.App.3d 1004, 1014.) While the Court finds Plaintiffs lack of communication sufficient grounds for permitting withdrawal, the Court finds a few issues with Counsels motions that need to be fixed.
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.
Notwithstanding, the Court GRANTS the motion. Plaintiff 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.).
CONCLUSION
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.).
Counsel is ordered to give notice of this ruling and file proof of service of same within five calendar days.
Ruling
MARQUEZ vs TUTTOILMONDO
Jul 11, 2024 |
CVSW2310812
MARQUEZ VS MOTION FOR RECONSIDERATION OF
CVSW2310812
TUTTOILMONDO SANCTIONS
Tentative Ruling:
The Motion is DENIED. There are no new facts or law. Plaintiff fails to set forth a sufficient
evidentiary basis upon which to conclude that she was not served with the motion to compel
further responses.
Plaintiff’s motion fails to set forth a sufficient evidentiary basis on which to determine that she
was not served with the motion to compel further responses. Her declaration states that
defendant’s counsel “false[ly] claimed to have mailed me their motion” (Marquez declaration, p.
4, ln. 19), but fails to provide any details regarding plaintiff’s practice of monitoring and
reviewing her mail such that it could reasonably be concluded that she did not receive the
motion, let alone that it was not sent. Meanwhile, there is a valid proof of service attached to
the discovery motion and supplemental evidence in the Espinoza declaration submitted in
opposition to this motion to support a finding that the motion was properly served. Plaintiff in
her reply does not dispute that she was actually aware of the motion by the time of the hearing
but provides no explanation for why she did not object or ask for a continuance if she had not
received actual notice of the motion in time to file an opposition.
Ruling
TRAVELERS COMMERCIAL INSURANCE COMPANY VS GARY L LUCKENBACHER
Jul 11, 2024 |
23SMCV05929
Case Number:
23SMCV05929
Hearing Date:
July 11, 2024
Dept:
P
Tentative Ruling
Travelers Commercial Insurance Co. v. Luckenbacher, Case No. 23SMCV05929
Hearing date July 11, 2024
Travelers Motions for Orders Compelling Responses to Form Interrogatories, Special Interrogatives, and Demand for Production of Documents and Request for Monetary Sanctions
In this uninsured motorist case, plaintiff moves to compel defendants responses to form interrogatories, special interrogatories, and demand for production of documents and requests sanctions. No opposition, which would have been due
nine court days prior to the hearing (Code Civ. Proc. §1005(b)) was filed.
If a party to whom interrogatories or an inspection demand were directed fails to serve a timely response, the propounding party may move for an order compelling responses without objections. Code Civ. Proc. §§2030.290(b), 2031.300(b). Moreover, failure to timely serve responses waives objections to the requests. Code Civ. Proc. §§2030.290(a), 2031.300(a). Failure to verify a response is equivalent to no response at all.
Appleton v. Superior Court
(1988) 206 Cal.App.3d 632, 636.
If a party unsuccessfully made or opposed such a motion, the court shall impose a monetary sanction . . . unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. Code Civ. Proc. §§2030.290(c), 2031.300(c). Sanctions may be awarded even though no opposition was filed or the requested discovery was provided after the motion was filed. CRC Rule 3.1348(a).
Defendant failed to respond. See generally Volk decls. All objections to the requests are waived.
Monetary sanctions are warranted. Plaintiffs counsel requests $841.65 for each motion, representing 4 hours of work (2 hours to draft and 2 hours to prepare for and attend the hearing) at counsels hourly rate of $195, plus filing fee of $61.65.
The request for sanctions is granted in a reduced amount because the three motions are virtually identical and are unopposed. The court awards a total of 6 hours (5 hours to draft, 1 hour for hearing) at $195/hour, plus filing fees of $184.95 for three motions.
GRANTED. Defendant to serve complete, verified responses, without objection, within 20 days of this order. The request for sanctions is GRANTED in the total amount of $1,365, plus $184.95 in filing fees, payable within 30 days.
Ruling
SOLIS vs FRIAS
Jul 11, 2024 |
CVRI2306086
MOTION TO COMPEL RESPONSES
TO REQUESTS FOR ADMISSIONS,
CVRI2306086 SOLIS VS FRIAS SET ONE, AND MONETARY
SANCTIONS; EXHIBITS BY JANAE
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.
Preview
FILED: NEW YORK COUNTY CLERK 04/02/2019 03:07 PM INDEX NO. 190004/2014 NYSCEF DOC. NO. 154 RECEIVED NYSCEF: 04/02/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK IN RE: NEW YORK COUNTY IN.Y.C.A.L. ASBESTOS LITIGATION : I.A.S. Part 13 : (Mendez, J.) This document relates to: CAROL LATORRE, as Administratrix for the Estate Index N o . : 190004/2014 of BASIL J. LATORRE, and CAROL LATORRE, Individually, February 2 0 1 6 FIFO Weitz & Luxenberg, P . C . Plaintiffs, REPLY AFFIRMATION IN -against- FURTHER SUPPORT OF RAIN BIRD CORPORATION'S A.O. SMITH WATER PRODUCTS, CO., et al. MOTION FOR SUMMARY JUDGMENT Defendants Matthew D. Sampar, an attorney licensed to practice law in the Courts of the State of New York, hereby affirms under penalties of perjury as follows: 1. I am a partner with the law firm of McGivney, Kluger & Cook, P.C., counsel for defendant, Rain Bird Corporation ("Rain Bird") in the above-captioned action. Unless otherwise stated, this Affirmation is made upon information and belief based upon a review of the files maintained in this action. 2. This Reply Affirmation is submitted in further support of Rain Bird's motion for summary judgment pursuant to Civil Practice Law and Rules ("CPLR") § 3212 and Paragraph XXI of the New York City Asbestos Litigation ("NYCAL") Case Management Order ("CMO"). PRELIMINARY STATEMENT 3. Rain Bird established its prima facie entitlement to judgment as a matter of law by unequivocally showing that a product for which itis liable could not have contributed to the causation of decedent's injury. Through the materials annexed to Rain Bird's motion for 1 of 13 FILED: NEW YORK COUNTY CLERK 04/02/2019 03:07 PM INDEX NO. 190004/2014 NYSCEF DOC. NO. 154 RECEIVED NYSCEF: 04/02/2019 summary judgment (including the affidavit of Frank Busam and the supporting documents thereto), Rain Bird demonstrated its entitlement to summary judgment because the record unequivocally established that (1) Rain Bird has no liability for Hammond valves sold before June 8, 1984, or in inventory as of June 8, 1984, and (2) to the extent that there are allegations of asbestos exposure through the removal of external insulation from Hammond valves which were potentially manufactured after June 8, 1984, Rain Bird did not manufacture, recommend or supply any external insulation - Hammond valves were intended to function, and did function, without external insulation. 4. Plaintiffs first oppose Rain Bird's motion for summary judgment on the basis that New York state tort law is displaced on the basis that (1) "Indiana state law governs the successor liability issues connected to Rain Bird's 1984 acquisition of Hammond Valves", and (2) because Indiana state law follows the "product line successor rule", "under the product line successor rule, Rain Bird is liable for Mr. Latorre's injuries resulting from his exposure to asbestos from Hammond Valve products." Plaintiffs' Opposition, 115-6. 5. Plaintiffs concede that under New York's successor liability rules, Rain Bird is not liable for Hammond Indiana's products. Plaintiffs' only opposition is that their lawsuit against Rain Bird is bound and limited by a contract that they were not a party to. However, the parties to the Asset Purchase and Sale Agreement determined that Indiana law would apply to any breach of contract action between themselves (and not non-parties such as Mr. Latorre). Plaintiffs do not assert that the law of any state other than Indiana should define the legal principles and standard of care owed to a non-party to a contract, such as Mr. Latorre, nor do plaintiffs contend that the Court should engage in any kind of choice-of-law analysis. 2 of 13 FILED: NEW YORK COUNTY CLERK 04/02/2019 03:07 PM INDEX NO. 190004/2014 NYSCEF DOC. NO. 154 RECEIVED NYSCEF: 04/02/2019 6. Plaintiffs next oppose Rain Bird's motion for summary judgment on the basis that Rain Bird cannot support the claim that it did not manufacture, recommend or supply any external insulation for use with Hammond valves, and that Hammond valves were intended to function, and did function, without external insulation through reliance on Mr. Busam's Affidavit, as his Affidavit is not founded on the requisite degree of personal knowledge and is not supported by documentation as pertains to Hammond valves prior to 1984. See Plaintiffs' Opposition, ,i 7. 7. However, Rain Bird has already established that it is not liable for Hammond valves sold before June 8, 1984, or in inventory as of June 8, 1984. Mr. Busam's personal knowledge on issues prior to that date, or issues involving Hammond Indiana, is irrelevant to the Court's analysis. Rather, the uncontroverted and unrebutted evidence demonstrates that Mr. Busam worked for Hammond California from June 8, 1984, onwards, and ran the Hammond California facility in Indiana, from June 8, 1984, onwards. Likewise, the uncontroverted and unrebutted evidence demonstrates that Mr. Busam was Hammond California's Vice President and the General Manager of the Hammond facility in Indiana until Hammond California's sale to Prairie Manufacturing Corporation in 1991. It is unclear who could have been in a better position to recount the practices and policies of Hammond California than Mr. Busam, the man who created and administered such practices and policies. 8. Accordingly, we will address each of plaintiffs' counsel's contentions in turn, and show why plaintiffs' opposition fails to rebut Rain Bird's prima facie entitlement to summary judgment. 3 of 13 FILED: NEW YORK COUNTY CLERK 04/02/2019 03:07 PM INDEX NO. 190004/2014 NYSCEF DOC. NO. 154 RECEIVED NYSCEF: 04/02/2019 ARGUMENT I. The contractual choice-of-law provision in the 1984 Asset Purchase and Sale Agreement does not displace the routine application of New York tort law as to plaintiffs' tort claims against Rain Bird. 9. As an initial matter, we note that the Asset Purchase and Sale Agreement relied upon by Rain Bird acknowledges that "[t]his Agreement, together with all schedules, exhibits, certificates and documents delivered in connection herewith or referenced to herein, contains the entire agreement between the parties hereto with respect to the transactions contemplated herein . . . " Ex. F, � 2 1 , "ENTIRE AGREEMENT" (emphasis added). 10. Part of the "entire agreement between the parties" includes the agreement that the contract "shall be construed and enforced in accordance with the laws of the State of Indiana." Ex. F, � 22, "CONSTRUCTION". 11. Plaintiffs claim that the routine application of New York state tort law should be displaced by a provision in a contract that plaintiffs were not a party to. Plaintiffs, non-parties to the contract, argue that Indiana state law applies to the issue of successor liability because the choice-of-law provision in the 1984 agreement between Hammond Indiana, Condec, Rain Bird, and HVC Acquiring stated that "[t]his Agreement shall be construed and enforced in accordance with the laws of the State oflndiana." Ex. F, � 22, "CONSTRUCTION". 12. However, in New York, choice-of-law provisions between parties to an agreement are not binding and enforceable with respect to a non-party to that agreement, such as Mr. Latorre. See Lippens v. Winkler Intl. Corp., 47 Misc.3d 1224(A), 2015 N.Y. Misc. LEXIS 1873 (N.Y. Sup. Ct., Monroe Cty., May 19, 20l5)(citing Hodom v. Stearns, 32 A.D.2d 234, 236 (4th Dept. 1 9 6 9 ) ; JA.O. Acquisition Corp. v. Stavitsky, 192 Misc.2d 7, 11 (N .Y. Sup. Ct., New York C ty . , N ovember 14, 2001), aff'd, 293 A. D .2d 323 (1st D ept. 2002 ) ). New York State courts are reluctant to "to construe contractual choice-of-law clauses broadly to encompass extra- 4 of 13 FILED: NEW YORK COUNTY CLERK 04/02/2019 03:07 PM INDEX NO. 190004/2014 NYSCEF DOC. NO. 154 RECEIVED NYSCEF: 04/02/2019 contractual causes of action", and generally find that tort claims, whether brought by a party to a contract, or an unrelated third party (such as Mr. Latorre), fall outside of such provisions. Fin. One Pub. Co. v. Lehman Bros. Special Fin., Inc., 414 F.3d 325, 334 (2d Cir. 2005), cert. denied, 548 U.S. 904 (2006). 13. For example, in a case where a contract's choice-of-law provision designated that New Yark law governed the contract, and one of the parties subsequently filed suit alleging a contractual cause of action and a tort cause of action based on Florida's civil RICO statute, the Court affirmed the denial of a motion to dismiss the Florida-based tort cause of action, because "the contractual choice of law provision does not govern the law to be applied to [the tort] cause of action." Twinlab Corp. v. Paulson, 283 A.D.2d 570, 571 (2d Dept. 2001). See also Gutstadt v. National Fin. Partners Corp., 2013 N.Y. Misc. LEXIS 5054 (N.Y. Sup. Ct., New York Cty., October 22, 2013)(choice-of-law clause governing interpretation of contract did not govern law for breach of fiduciary duty, fraud, and unjust enrichment causes of action); Knierieman v. Bache Halsey Stuart Shields, Inc., 74 A.D. 290 (1st Dept. 1980), appeal dismissed 50 N.Y.2d 1021 (N. Y. 1 9 8 0 ) ( choice-of-lawprovision in contract did not bind the parties as to causes of action sounding in tort). 14. Indeed, under New Yark law, generally the only way that a non-party to a contract can seek to enforce the terms or provisions of a contract are when that non-party is a third party beneficiary to the contract. In other words, a "contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party . . . [b ]efore an injured party may recover as a third-party beneficiary for failure to perform a duty imposed by contract, it must clearly appear from the provisions of the contract that the parties thereto intended to confer a direct benefit on the alleged third-party beneficiary to protect him or her from physical injury." 5 of 13 FILED: NEW YORK COUNTY CLERK 04/02/2019 03:07 PM INDEX NO. 190004/2014 NYSCEF DOC. NO. 154 RECEIVED NYSCEF: 04/02/2019 Diano v. RPS Corp., 2016 N.Y. Misc. LEXIS 2550 (N.Y. Sup. Ct., New York Cty., July 6, 2016); see also Dormitory Auth. Of the State of N Y v. Samson Constr. Co., 30 N.Y.3d 704 (N.Y. 2018)(reaffirming that a third party's right to enforce a contract is limited to where the third party is the only one who could recover for breach of contract or when it is otherwise clear from the language of the contract that there was an intent to permit enforcement by the third party). 15. Here, plaintiffs are bringing tort claims against Rain Bird. Plaintiffs are not a party to the contract at issue, the 1984 Asset Purchase and Sale Agreement. Only Hammond Indiana, Condec, Rain Bird, and HVC Acquiring were parties to that contract. Nor do plaintiffs somehow claim to be third party beneficiaries to the contract, or that somehow they were injured by a failure to perform a duty imposed by 1984 Asset Purchase and Sale Agreement. Even if they claimed to be a third party beneficiary to the contract, they are certainly not the only party who could recover from a hypothetical breach of the contract. Likewise, even if they claimed to be a third party beneficiary to the contract, there is no language in the 1984 Asset Purchase and Sale Agreement that evinces an intent to permit their enforcement of the provisions of the contract. Despite plaintiffs' claims to the contrary, New York tort law is not displaced by virtue of the choice-of-law provision in the 1 9 8 4 Asset Purchase and Sale Agreement. 16. The primary authority relied upon by plaintiffs' counsel is both easily distinguishable from the matter at hand, and still in harmony with the above-cited law. In Ministers & Missionaries Ben. Bd. v. Snow, 26 N.Y.3d 466 (N.Y. 2015), the Court of Appeals opined on the narrow issue of whether when parties include a New York choice-of-law provision in a contract that does not fall under General Obligations Law § 5-1401, such a provision demonstrates that parties' intent that court not conduct a conflict-of-laws analysis. Ministers & 6 of 13 FILED: NEW YORK COUNTY CLERK 04/02/2019 03:07 PM INDEX NO. 190004/2014 NYSCEF DOC. NO. 154 RECEIVED NYSCEF: 04/02/2019 Missionaries Ben. Bd., 26 N.Y.3d at 468. That matter has no bearing on this case precisely because it involves litigation between the parties to a contract (in that case, a New York not-for profit corporation that administered retirement plans and death benefit plans, the estate of an enrollee said plans, and the primary and contingent beneficiaries of said plans), not litigation involving tort claims by non-parties to a contract (as is the case here). 17. The same is true as to Boss v. American Exp. Financial Advisors, Inc., 15 A.D.3d 306 ( 1 s t Dept.2005), aff'd 6 N . Y . 3 e 242(N.Y. 2006). Boss has no bearing on this case precisely because it involves litigation between the parties to a contract - there, plaintiff financial advisors who entered into employment agreements with defendant corporations. Boss, 15 A.D.3d, 307. Boss does not involve a lawsuit sounding in tort by non-parties to a contract brought against a party to a contract, such plaintiffs' lawsuit against Rain Bird. 18. Your Honor's decision in the Gonzalez matter does not conflict with the conclusion that New York tort law is not displaced by virtue of the choice-of-law provision in the 1 9 8 4 Asset Purchase and Sale Agreement. In that case, despite a defendant's invocation of a choice-of-law provision in a contract to support the argument that another state's tort law applied, and thus relieved that defendant of liability, the choice-of-law provision was irrelevant, and a determination of liabilities was a simple matter of New York's law regarding the interpretation of contracts. Indeed, as plaintiffs concede, although your Honor acknowledged that the contract at issue in Gonzalez was governed by the law of another state due to the contract's choice-of-law provision, ultimately, New York state law applied as to the tort claims brought by plaintiff, a non-party to the contract at issue. See Plaintiffs' Opposition, at FN 1. 19. In Gonzalez, plaintiff, a non-party to a series of contracts involving defendant Ford and other parties, brought tort claims against Ford for asbestos-related personal injuries, 7 of 13 FILED: NEW YORK COUNTY CLERK 04/02/2019 03:07 PM INDEX NO. 190004/2014 NYSCEF DOC. NO. 154 RECEIVED NYSCEF: 04/02/2019 and moved for partial summary judgment for a finding that Ford was the legal successor to the other parties in the series of contracts, and therefore potentially liable to plaintiff See Gonzalez v. 3M Co., 2018 N.Y. Misc. LEXIS 2457 (N.Y. Sup. Ct., New York Cty., June 20, 2018). Ford attempted to disclaim potential liability to plaintiff by pointing to, among other things, a choice- of-law provision in a contract providing that Pennsylvania law governed, and arguing that because Pennsylvania law governed, Pennsylvania's "product line successor rule" should apply, and the other party to the contract should be deemed liable to plaintiff for his asbestos-related personal injuries. Id. at * 17. Your Honor acknowledged that the contract was governed by Pennsylvania law, but also found that Pennsylvania's "product line successor rule" did not apply to the tort claims at issue. Id. at *17-18. Rather, cognizant of the Court of Appeals holding in Semenetz'; your Honor found that a reading of all the agreements, as guided by New York law related to the interpretation of contracts, merely demonstrated that Ford ultimately retained the liabilities for asbestos-related personal injuries. Id. at * 1 8 - 2 0 . 20. Lippens, supra, is instructive. In that matter, the plaintiff, a New York state resident, commenced a products liability action in New York for injuries sustained while operating a bread-making machine in Rochester, New York. Lippens, 2015 N.Y. Misc. LEXIS at *3-4 The machine was manufactured by a German company, Winkler GmbH, certain assets of whose were later purchased by an American company, Bakery Engineering. Id. at *4-5. Initially, plaintiff claimed that New Jersey law governed the matter based on the choice-of-law provision in the Asset Sale Agreement between Winkler and Bakery Engineering. Id. at *20-21. The Court disregarded plaintiffs assertion that New Jersey law was controlling, opining that the language in the choice-of-law provision was "appropriate for a contract dispute situation . . . but 1 "[A]s stated by the New York Court of Appeals in Semenetz, 'extending liability to the corporate successor places responsibility for a defective product on a party that did not put the product into the stream of commerce [ which]is Id. at inconsistent with the basic justification for products liability."' * 18. 8 of 13 FILED: NEW YORK COUNTY CLERK 04/02/2019 03:07 PM INDEX NO. 190004/2014 NYSCEF DOC. NO. 154 RECEIVED NYSCEF: 04/02/2019 not a tort liability scenario . . . . [i]t is not reasonable to allow a contract to define the legal principles and standard of care owed to a non-party such as the present Plaintiff." Id. at * 2 1 . 21. Similarly, in this matter, it is not reasonable to allow a contract to define the legal principles and standard of care owed to non-parties such as plaintiffs. After all, Mr. Latorre was a life-long New York resident bringing a lawsuit sounding in tort in a New York court for injuries sustained in New York. See generally, Ex. D. Therefore, Rain Bird has unequivocally established its prima facie entitlement to summary judgment because Rain Bird did not acquire tort or product liabilities in the Asset Purchase and Sale Agreement. Plaintiffs have not shown that one of the four limited exceptions to the Schumacher rule applies - or, put another way, plaintiffs did not rebut Rain Bird's establishment of its prima facie entitlement to summary judgment on the issue of successor liability. II. Rain Bird has established its prima facie entitlement to summary judgment on the issue of whether it has a duty to warn of the use of asbestos-containing exterior insulation on Hammond valves manufactured after June 8, 1984, and plaintiffs did not meet their burden of rebutting same. 22. First, this case is not about asbestos-containing gaskets, as plaintiffs state in their opposition. See Plaintiffs' Opposition, 11 8, 36. This case is about asbestos-containing exterior insulation, the only source of Mr. Latorre's alleged asbestos exposure from a Hammond valve. In fact, the fact witness, Mr. Timpone, was specifically asked whether there was exposure through internal valve components, such as gaskets, and Mr. Timpone explicitly denied any such exposure: Q. Why would you be exposed to asbestos on the Hammond valves? A. We replaced many valves and we replaced like for like, exactly the same to exactly the same so you didn't have to change anything. Q. Where would the asbestos be on the Hammond valves? A. On the body. Q. This would be an external insulation? 9 of 13 FILED: NEW YORK COUNTY CLERK 04/02/2019 03:07 PM INDEX NO. 190004/2014 NYSCEF DOC. NO. 154 RECEIVED NYSCEF: 04/02/2019 A. Yes. Q. Do you believe you were exposed to asbestos from any internal components of Hammond valves? A. No. Ex. D, 380:8-21. 23. In sum, Mr. Timpone did not claim any further exposure from Hammond valves other than from the removal of exterior asbestos insulation - there are no allegations at all of any work with, or exposure through, asbestos-containing gaskets associated with Hammond valves. 24. Second, this case is not about Mr. Busam's personal knowledge of what Hammond Indiana manufactured, recommended or supplied, or what hypothetical component parts Hammond Indiana required Hammond valve to utilize in order to properly function. Rain Bird has already demonstrated that it is not liable for any Hammond valves sold prior to June 8, 1984, or in inventory on June 8, 1984. Mr. Busam's personal knowledge of Hammond valves prior to that date is not relevant to the Court's analysis. That "Mr. Busam's affidavit offers no explanation whatsoever (such as reviewed records) as to how he would have any basis of knowledge regarding the specifications of Hammond Valves prior to the 1984 purchase by Rain Bird, and whether 'as a matter of design, mechanics or economic necessity, [external asbestos- containing insulation was] necessary to enable [its] product to function as intended . . . " ' (Plaintiffs' Opposition, ,r34, citing Dummitt v. A. W. Chesterton, 27 N . Y . 3 d 765, 793 (2016)) is utterly irrelevant. What is relevant to the Court's analysis isMr. Busam's personal knowledge of Hammond valves manufactured after June 8, 1984 - after consummation of the 1984 Asset Purchase and Sale Agreement'. 2 Plaintiffsincorrectly posit that the 1984 agreement was "merger", rather than an asset sale, a characterization of the transaction that has far differentlegal consequences than those at issue here. See Plaintiffs' Opposition, � 7. Suffice to say, it is facially unambiguous that 1 9 8 4 agreement was an asset sale, and not a merger. 10 of 13 FILED: NEW YORK COUNTY CLERK 04/02/2019 03:07 PM INDEX NO. 190004/2014 NYSCEF DOC. NO. 154 RECEIVED NYSCEF: 04/02/2019 25. As demonstrated above, and in Rain Bird's motion-in-chief, the uncontroverted and unrebutted evidence demonstrates that Mr. Busam worked for Hammond California from June 8, 1984, onwards, and ran the Hammond California facility in Indiana, from June 8, 1984, onwards. Likewise, the uncontroverted and unrebutted evidence demonstrates that Mr. Busam was Hammond California's Vice President and the General Manager of the Hammond facility in Indiana until Hammond California's sale to Prairie Manufacturing Corporation in 1991. It is unclear who could have been in a better position to recount the practices and policies of Hammond California than Mr. Busam, the man who created and administered such practices and policies. 26. As former NYCAL Coordinating Judge Justice Peter Moulton (now Associate Justice of the Appellate Division, First Department) recognized in terms of a defendant establishing its primafacie entitlement to summary judgment An affidavit from a corporate representative which is "conclusory and without specific factual basis" does not meet the burden (Matter of New York City Asbestos Litig. (DiSalvo), 123 A.D.3d 498, 1 N.Y.S.3d 20 [1st Dept. 2014]). By contrast, in Root v. Eastern Refractories, Co. (13 A.D.3d 1187, 787 N . Y . S . 2 d 5 8 6 [4th Dept. 2004 ]), an affidavit from a corporate employee who worked for the defendant since 1948, which stated that the company did not supply any asbestos-containing products to Syracuse University during the relevant time, is sufficient to meet the burden of proof. Matter of New York City Asbestos Litig. (Galasso), 2015 N.Y. Misc. LEXIS 2886 (N.Y. Sup. Ct., New York Cty., August 6, 2 0 1 5 ) 27. Here, like the defendant in Root, Rain Bird has established its prima facie entitlement to summary judgment through the affidavit of a corporate employee who worked for the defendant throughout the relevant time period (in this case, 1 9 8 4 to1 9 9 1 ). Unlike Root, after the burden shift, plaintiffs have not shown facts and conditions from which the defendant's 11 of 13 FILED: NEW YORK COUNTY CLERK 04/02/2019 03:07 PM INDEX NO. 190004/2014 NYSCEF DOC. NO. 154 RECEIVED NYSCEF: 04/02/2019 liability may be reasonably inferred - plaintiffs have not come forward with any evidence creating a reasonable inference that plaintiff was exposed to a specific defendant's product. 28. Rather, as argued in Rain Bird's motion-in-chief, this case is comparable to Peraica, where defendant Taco established its prima facie entitlement to summary judgment through the affidavit of its corporate representative, who had worked for Taco from 1974 through the time Taco's motion for summary judgment was made, in positions related to the design and manufacture of Taco's pump products. Taco's corporate representative's testimony, through his affidavit, was that asbestos-containing exterior insulation (the sole asbestos containing product at issue in Peraica, which was manufactured and supplied by third parties, not Taco) was unnecessary for Taco pumps to function as they were designed to function. Thus Taco never specified, supplied or recommended the use of asbestos-containing external insulation for any of its pumps. Once Taco established itsprima facie entitlement to summary judgment, plaintiff was unable to rebut same. Accordingly, using principles analogous to the Court of Appeals analysis in Dummitt, the court granted Taco summary judgment, just as the Court should grant Rain Bird summary judgment in this matter. CONCLUSION 29. Based upon the foregoing reasons, Rain Bird is entitled to summary judgment as a matter of law dismissing this matter and all cross-claims against iton the grounds that Rain Bird is not liable to plaintiffs for injury resulting from any asbestos exposure from Hammond valves. 12 of 13 FILED: NEW YORK COUNTY CLERK 04/02/2019 03:07 PM INDEX NO. 190004/2014 NYSCEF DOC. NO. 154 RECEIVED NYSCEF: 04/02/2019 WHEREFORE, defendant Rain Bird respectfully requests that the Court grants its motion for summary judgment in its entirety, and issue an Order dismissing, with prejudice, Plaintiffs' Complaint and all cross-claims against Rain Bird, and for such other and further relief as this Court may deem just and proper. Dated: New York, New York April 2, 2019 McGIVNEY, KLUGER & COOK, P . C . Attorneys for Defendant RA � RP � By: Matthew D. Sampar, Esq. 80 Broad Street, 23rd Floor New York, New York 10004 (212) 509-3456 13 of 13