Preview
F Superior Court of California F
County of Butte
DIEPENBROCK & COTTER, LLP | |
JOHN P. COTTER, State Bar No. 158783 L 2/24/2021 L
SARAH K. GLATT, State Bar No. 308103
1435 River Park Drive, Suite 400
Sacramento, California 95815 D KimietiyPig cl D
T. (916) 565-6222 | F. (916) 565-6220 Deputy
E. jpc@ diepenbrockcotter.com | skg@ diepenbrockcotter.com Electrically FILED
Attorneys for Defendants
DAN PALMER BROKERING, INC. and DAN PALMER
TRUCKING, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF BUTTE
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11 KRISTOPHER BLEE; ELLEN BLEE; and Case No.: 20CV01521
OLIVIA BLEE,
12 REQUEST FOR JUDICIAL NOTICE IN
Plaintiff, SUPPORT OF REPLY TO OPPOSITION
13 TO DEFENDANTS’ MOTION TO
vs. STRIKE PORTIONS OF PLAINTIFFS’
14 SECOND AMENDED COMPLAINT
PAUL FRANCO TRUCKING, INC.;
15 THOMASJ. FAIRHURST; DAN PALMER Date: March 3, 2021
BROKERING, INC.; DAN PALMER Time: 9:00 A.M.
16 TRUCKING INC.; SPSG PARTNERS LLC; Dept.: 1
SUKUT CONSTRUCTION LLC; PACIFIC
17 STATES ENVIRONMENTAL
CONTRACTORS, INC.; GOODFELLOW
18 BROS CALIFORNIA, LLC; DOES 1 to 100,
Inclusive
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Defendants. Complaint Filed: 08/04/2020
20 Second Amended
Complaint Filed: 12/04/2020
21 Trial Date: None
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23 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
24 Califomia Evidence Code section 452 provides in pertinent part as follows:
25 “Judicial notice may be taken of the following matters to the extent that they are
not embraced within Section 451:
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...(d) Records of (1) any court of this state...”
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REQUEST FOR JUDICIAL NOTICE ISO REPLY TO OPPOSITION TO DEFENDANTS’ MTS PORTIONS OF PLAINTIFFS’ SAC
Pursuant to Evidence Code sections 451 and 452, subdivision (d), moving defendants DAN
PALMER BROKERING, INC. and DAN PALMER TRUCKING, INC. (collectively “Palmer”)
hereby request this Court take judicial notice of the following documents in support of Palmer’s
Reply to Plaintiffs KRISTOPHER BLEE, OLIVIA BLEE, and ELLEN BLEE?’s (collectively
Plaintiffs”) Opposition to Palmer’s to Motion to Strike Portions of Plaintiffs’ Second Amended
Complaint pursuant to Code of Civil Procedure sections 436 and/or 431.10 as follows:
1 A copy of defendant Thomas J. Fairhurst’s Answer to Plaintiffs’ Second Amended
Complaint filed on January 12, 2021 and attached hereto as Exhibit L.
2 A copy of defendant PAUL FRANCO dba PAUL FRANCO TRUCKING, INC.’s
10 (erroneously sued as PAUL FRANCO TRUCKING, INC.) Answer to Plaintiffs’ Second
11 Amended Complaint filed in this Court on January 12, 2021 and attached hereto as ExhibitM.
12 Respectfully submitted.
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14 DATED: February 24, 2021 DIEPENBROC K &CO 7 TER DLP |
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By: YMA X xx fe
16 JOHN P. COTTER
SARAH K. GLATT
17 Attomeys for Defendants
DAN PALMER BROKERING, INC. and DAN
18 PALMER TRUCKING, INC.
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REQUEST FOR JUDICIAL NOTICE ISO REPLY TO OPPOSITION TO DEFENDANTS’ MTS PORTIONS OF PLAINTIFFS’ SAC
Exhibit L.
Superior Court of California F
Richard M. Jacobson, Esq. —- SBN 114520 County of Butte
Joseph T. Urbanic, Esq. - SBN 302094 | |
JACOBSON MARKHAM, L.L.P. L 1/12/2021 L
8950 Cal Center Drive, Suite 210
Sacramento, CA 95826
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Tel: 916.854.5969 D Kirn rk D
Fax: 916.854.5965 By . Deputy
Ele! ically FILED
Attorneys for Defendant
THOMAS J. FAIRHURST
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF BUTTE
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KRISTOPHER BLEE, ELLEN BLEE, and) No. 20CV01521
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OLIVIA BLEE,
12 DEFENDANT THOMAS J.
Plaintiffs,
FAIRHURST’S ANSWER TO
13 vs.
PLAINTIFFS’ SECOND AMENDED
COMPLAINT
14 PAUL FRANCO TRUCKING, INC., et al,
15 Defendants.
16
17 COMES NOW defendant THOMAS J. FAIRHURST (“Defendant”), and through his
18 attorneys, Jacobson Markham, L.L.P., answers the Second Amended Complaint (“Complaint”) of
19 Plaintiffs KRISTOPHER BLEE, ELLEN BLEE, and OLIVIA BLEE (“Plaintiffs”) by generally
20 denying each and every allegation contained therein.
21 GENERAL DENIAL
22 Under the provisions of California Code of Civil Procedure section 431.30, this answering
23 Defendant denies each, every and all of the allegations of Plaintiffs’ Complaint, and each cause of|
24 action therein, and the whole thereof; and further answering said Complaint, and each cause of|
25 action therein, this answering Defendant generally and specifically denies that Plaintiffs have
26 sustained any loss, injury, or damage as the proximate result of any act, breach, or omission on the
27 part of this answering Defendant.
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Jacobson Markham -l-
Sacramento, California
DEFENDANT THOMAS J. FAIRHURST’S ANSWER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT
AFFIRMATIVE DEFENSES
As separate and distinct affirmative defenses, Defendant THOMAS J. FAIRHURST alleges
upon information and belief as follows:
FIRST AFFIRMATIVE DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE, Defendant alleges that the Plaintiffs
themselves were negligent or otherwise responsible in and about the matters set forth in said
Complaint, and each cause of action thereof, which proximately contributed to the damages
complained of, if any.
SECOND AFFIRMATIVE DEFENSE
10 AS A FURTHER SEPARATE AFFIRMATIVE DEFENSE, Defendant alleges that third
11 parties, and others, were negligent or otherwise responsible in and about the matters referred to in
12 said Complaint and that such negligence bars and/or diminishes Plaintiffs’ recovery.
13 THIRD AFFIRMATIVE DEFENSE
14 AS A FURTHER SEPARATE AFFIRMATIVE DEFENSE, Defendant alleges that neither
15 said Complaint, nor any cause of action thereof, state facts sufficient to constitute a cause of action
16 against this appearing Defendant.
17 FOURTH AFFIRMATIVE DEFENSE
18 AS A FURTHER SEPARATE AFFIRMATIVE DEFENSE, Defendant is informed and
19 believes, and thereon alleges, that Plaintiffs’ alleged injuries, loss, or damages, if any, were
20 aggravated by Plaintiffs’ failure to use reasonable diligence to mitigate the same.
21 FIFTH AFFIRMATIVE DEFENSE
22 AS A FURTHER SEPARATE AFFIRMATIVE DEFENSE, Defendant alleges that the Co-
23 Defendants, and each of them, named and unnamed in the Complaint, were guilty of negligence, or
24 other acts or omissions in the matters set forth in the Complaint, which proximately caused or
25 contributed to the damages or loss complained of, if any, and that the Court is requested to
26 determine and allocate the percentage of negligence attributable to each of the Co-Defendants.
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Jacobson Markham -2-
Sacramento, California
DEFENDANT THOMAS J. FAIRHURST’S ANSWER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT
PRAYER
WHEREFORE, Defendant prays for judgment against Plaintiffs as follows:
1 That Plaintiffs take nothing by way of this action;
2. That Defendant be awarded costs of suit incurred herein; and
3 For such other and further relief as the court deems just and proper.
Dated: January 12, 2021 JACOBSON MARKHAM, L.L.P.
By
RIC _ JACOBSON, ESQ.
10 JOSER / URBANIC, ESQ.
Attorneys for Defendant THOMAS J
11 FAIRHURST
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Jacobson Markham 3-
Sacramento, California
DEFENDANT THOMAS J. FAIRHURST’S ANSWER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT
PROOF OF SERVICE
Blee, et al. v. Paul Franco Trucking, Inc., et al.
Butte County Superior Court No. 20CV01521
Iam 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 8950 Cal Center Drive, Suite 210,
Sacramento, California 95826-3228. On January 12, 2021 I served the foregoing document(s)
described as:
. DEFENDANT THOMAS J. FAIRHURST’S ANSWER TO PLAINTIFFS’ SECOND
AMENDED COMPLAINT
by placing the original or a true copy thereof enclosed in a sealed envelope addressed as follows:
SEE ATTACHED SERVICE LIST
10 BY U.S. MAIL
Iam “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. Under|
11 that practice it would be deposited with the U.S. postal service on that same day with postage thereon fully
prepaid at Sacramento, California in the ordinary course of business. I am aware that on motion of the party
12 served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after}
date of deposit for mailing in affidavit.
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BY FACSIMILE
14 by transmitting via facsimile the above listed document(s) to the fax number(s) set forth above on this date
before 5:00 p.m.
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16 BY ELECTRONIC SERVICE ONLY
by transmitting a PDF version of this document by electronic mail to the party(s) identified above using the e-
mail address(es) indicated. Pursuant to California Emergency Rule of Court 12(b), this document was served by
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Electronic Service only.
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19 Executed on January 12, 2021 at Sacramento, California.
20 I declare under penalty of perjury under the laws of the State of California that the above is
true and correct.
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23 M IN E. PATE
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Jacobson Markham -l-
Sacramento, California
PROOF OF SERVICE
SERVICE LIST
Douglas Mudford, Esq. Attorneys for Plaintiffs Tel: 530.243.8008
Estee Lewis, Esq. Fax: 520.243.1648
Catie Barr, Esq.
Brandon Storment, Esq.
BARR & MUDFORD, LLP
1824 Court Street
P.O. Box 994390
Redding, CA 96099
catie@ca-lawyer.com
lary Talmachoff, Esq. Attorneys for Defendant PAUL Tel: 916.789.7080
BATES WINTER & TALMACHOFF, LLP FRANCO dba PAUL FRANCO Fax: 916.789.7090
925 Highland Pointe Drive, Suite 380 TRUCKING, INC.
Roseville, CA 95678
mtalmachoff@bateswinterlaw.com
Tara-Jane L. Flynn, Esq. Attorneys for Defendants SPSG Tel: 213.745.8600
David Frishman, Esq. PARTNERS LLC, SUKUT Fax: 213.745.8604
TYSON & MENDES CONSTRUCTION, LLC,
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1055 West 7" Street, Suite 2500 PACIFIC STATES
Los Angeles, CA 90017 ENVIRONMENTAL
11 dfrishman@tysonmendes.com CONTRACTORS, INC., and
GOODFELLOW BROS
12 CALIFORNIA, LLC
John P. Cotter, Esq. Attorneys for Defendants DAN Tel: 916.565.6222
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Sarah K. Glatt, Esq. PALMER BROKERING, INC. Fax: 916.565.6220
DIEPENBROCK & COTTER, LLP and DAN PALMER TRUCKING,
14 1435 River Park Drive, Suite 400 INC.
Sacramento, CA 95815
15 jpe@diepenbrockcotter.com
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Jacobson Markham -2-
Sacramento, California
PROOF OF SERVICE
Exhibit M
F Superior Court of California F
County of Butte
MARY K. TALMACHOFF, STATE BAR NO. 258797 | |
BATES WINTER & TALMACHOFF LLP
925 Highland Pointe Drive, Suite 380 E 1/12/2021 E
Roseville, CA 95678
Telephone: (916) 789-7080 D Kimberly Flener, Clerk D
Facsimile: (916) 789-7090 By Deput}
Electronically FILED
Attorneys for Defendant PAUL FRANCO dba PAUL FRANCO TRUCKING, INC.
(erroneously sued as PAUL FRANCO TRUCKING, INC.)
SUPERIOR COURT OF CALIFORNIA
COUNTY OF BUTTE
10
11 KRISTOPHER BLEE; ELLEN BLEE; and ) Case No. 20CV01521
OLIVIA BLEE,
12 DEFENDANT PAUL FRANCO dba PAUL
Plaintiff, FRANCO TRUCKING, INC.’S ANSWER
13 TO PLAINTIFFS’ SECOND AMENDED
Vv, COMPLAINT FOR WRONGFUL DEATH
14 AND PERSONAL INJURY; EXEMPLARY|
PAUL FRANCO TRUCKING, INC; DAMAGES
15
THOMAS J. FAIRHURST; DAN PALMER
16 BROKERING, INC.; STATE OF
CALIFORNIA, DEPARTMENT OF
17 RESOURCES RECYCLING AND
RECOVERY dba CALRECYCLE; SPSG
18 PARTNERS LLC; SUKUT
CONSTRUCTION, INC.; SUKUT
19 CONSTRUCTION, LLC; PACIFIC STATES Assigned For All Purposes to:
ENVIRONMENTAL CONTRACTORS, Hon. Judge Tamara L. Mosbarger
20 INC.; GOODFELLOW BROS.
CALIFORNIA, LLC, and DOES |to 100, Complaint Filed: August 4, 2020
21 inclusive, FAC Filed: September 28, 2020
SAC Filed: December 4, 2020
22 Defendants. Trial Date: None
23 NOW COMES defendant, PAUL FRANCO dba PAUL FRANCO TRUCKING, INC.,
24 (erroneously sued as PAUL FRANCO TRUCKING INC.) and answering the Second Amended
25 Complaint of plaintiffs’ KRISTOPHER BLEE, ELLEN BLEE, and OLIVIA BLEE on file
26 herein, alleges as follows:
27 Mil
28 Mil
1
DEFENDANT PAUL FRANCO dba PAUL FRANCO TRUCKING, INC.’S ANSWER TO PLAINTIFFS’ SECOND
AMENDED COMPLAINT FOR WRONGFUL DEATH AND PERSONAL INJURY; EXEMPLARY DAMAGES
Defendant denies each and every, all and singular, generally and specifically, the
allegations contained in said Second Amended Complaint on file herein, and specifically denies
that the plaintiffs were damaged in any amounts alleged in the Second Amended Complaint, or
in any other amount, or at all.
I
AS A SEPARATE, DISTINCT AND FIRST AFFIRMATIVE DEFENSE TO
PLAINTIFFS’ SECOND AMENDED COMPLAINT, THIS ANSWERING DEFENDANT
ALLEGES AS FOLLOWS:
That plaintiffs’ Second Amended Complaint fails to state facts sufficient to constitute a
10 cause of action against this answering defendant.
11 I
12 AS A SEPARATE, DISTINCT AND SECOND AFFIRMATIVE DEFENSE TO
13 PLAINTIFFS’ SECOND AMENDED COMPLAINT, THIS ANSWERING DEFENDANT
14 ALLEGES AS FOLLOWS:
15 That at the time and place of the incident alleged in plaintiffs’ Second Amended
16 Complaint, plaintiffs’ decedent was negligent in and about the matters set forth in the Second
17 Amended Complaint, which negligence proximately contributed to the damages complained of,
18 if any there were.
19 Til
20 AS A SEPARATE, DISTINCT AND THIRD AFFIRMATIVE DEFENSE TO
21 PLAINTIFFS’ SECOND AMENDED COMPLAINT, THIS ANSWERING DEFENDANT
22 ALLEGES AS FOLLOWS:
23 That plaintiffs’ injuries and damages, if any, were the result of the conduct of other
24 defendants or other parties, named or unnamed herein and the liability of this answering
25 defendant, if any, is proportionally reduced thereby in accordance with applicable law.
26 Mil
27 Mil
28 Mil
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DEFENDANT PAUL FRANCO dba PAUL FRANCO TRUCKING, INC.’S ANSWER TO PLAINTIFFS’ SECOND
AMENDED COMPLAINT FOR WRONGFUL DEATH AND PERSONAL INJURY; EXEMPLARY DAMAGES
IV
AS A SEPARATE, DISTINCT AND FOURTH AFFIRMATIVE DEFENSE TO
PLAINTIFFS’ SECOND AMENDED COMPLAINT, THIS ANSWERING DEFENDANT
ALLEGES AS FOLLOWS:
That decedent freely and voluntarily assumed the risk of injury and damage alleged in
this action with full knowledge and appreciation of the magnitude thereof.
v
AS A SEPARATE, DISTINCT AND FIFTH AFFIRMATIVE DEFENSE TO
PLAINTIFFS’ SECOND AMENDED COMPLAINT, THIS ANSWERING DEFENDANT
10 ALLEGES AS FOLLOWS:
11 That plaintiffs’ Second Amended Complaint is barred by the applicable provisions of the
12 Code of Civil Procedure in that plaintiffs failed to commence their action for damages in a
13 timely fashion.
14 VI
15 AS A SEPARATE, DISTINCT AND SIXTH AFFIRMATIVE DEFENSE TO
16 PLAINTIFFS’ SECOND AMENDED COMPLAINT, THIS ANSWERING DEFENDANT
17 ALLEGES AS FOLLOWS:
18 That plaintiffs’, with the exercise of reasonable diligence and effort, would have and
19 could have mitigated the damages alleged in the Second Amended Complaint, if any there are,
20 and the resultant damages complained of in said Second Amended Complaint, if any, were
21 directly and proximately caused by the failure, neglect, and refusal of the plaintiffs to exercise
22 reasonable diligence and effort to mitigate the damages alleged.
23 vil
24 AS A SEPARATE, DISTINCT AND SEVENTH AFFIRMATIVE DEFENSE TO
25 PLAINTIFFS’ SECOND AMENDED COMPLAINT, THIS ANSWERING DEFENDANT
26 ALLEGES AS FOLLOWS:
27 That the decedent left surviving certain heirs, the names of whom are currently
28 unknown to defendant; and that there is a failure to join said heirs as party plaintiffs.
3
DEFENDANT PAUL FRANCO dba PAUL FRANCO TRUCKING, INC.’S ANSWER TO PLAINTIFFS’ SECOND
AMENDED COMPLAINT FOR WRONGFUL DEATH AND PERSONAL INJURY; EXEMPLARY DAMAGES
vill
AS A SEPARATE, DISTINCT AND EIGHTH AFFIRMATIVE DEFENSE TO
PLAINTIFFS’ SECOND AMENDED COMPLAINT, THIS ANSWERING DEFENDANT
ALLEGES AS FOLLOWS:
Assuming negligence or other wrongdoing on the part of this answering Defendant,
which this Defendant expressly denies, it was not the proximate cause of plaintiffs’ alleged
damages, but plaintiffs’ alleged damages were the result of superseding and/or intervening
causes.
Ix
10 AS A SEPARATE, DISTINCT AND NINTH AFFIRMATIVE DEFENSE TO
11 PLAINTIFFS’ SECOND AMENDED COMPLAINT, THIS ANSWERING DEFENDANT
12 ALLEGES AS FOLLOWS:
13 That the pleading and each alleged cause of action thereof fails to state facts sufficient
14 to constitute a cause of action for punitive damages. Defendant’s conduct with respect to the
15 incident did not constitute malice, oppression, or fraud and does not support a claim for
16 punitive damages.
17 RESERVE DEFENSES
18 This answering defendant alleges defendant presently has insufficient knowledge and
19 information upon which to form a belief as to whether defendant may have additional, as yet
20 unstated, affirmative defenses to plaintiffs’ Second Amended Complaint. Accordingly, this
21 answering defendant reserves the right to assert additional defenses in the event that discovery
22 and/or investigation reveal a factual and/or legal basis for such additional affirmative defenses.
23 WHEREFORE, this answering defendant prays that plaintiffs’ take nothing by reason of
24 their Second Amended Complaint on file and that this defendant be dismissed together with its
25 costs of suit incurred herein.
Dated: January 12, 2021 BATES WINTER & TALMACHOFF LLP
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—_—
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MARY. TALMACHOFF
28 Attorneys for Defendant PAUL FRANCO dba
PAUL FRANCO TRUCKING, INC. (erroneously
sued as PAUL FRANCO TRUCKING, INC.)
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DEFENDANT PAUL FRANCO dba PAUL FRANCO TRUCKING, INC.’S ANSWER TO PLAINTIFFS’ SECOND
AMENDED COMPLAINT FOR WRONGFUL DEATH AND PERSONAL INJURY; EXEMPLARY DAMAGES
PROOF OF SERVICE
Re: Blee, et al. v. Paul Franco Trucking, Inc., et al.
Butte County Superior Court, Case No. 20CV01521
STATE OF CALIFORNIA )
) ss.
COUNTY OF PLACER )
I am employed in the County of Placer, State of California. I am over the age of 18
years and not a party to the within above-entitled action; my business address is 925 Highland
Pointe Drive, Suite 380, Roseville, California 95678.
On this date, I served the attached:
DEFENDANT PAUL FRANCO dba PAUL FRANCO TRUCKING, INC.’S ANSWER
TO PLAINTIFFS’ SECOND AMENDED COMPLAINT FOR WRONGFUL DEATH
AND PERSONAL INJURY; EXEMPLARY DAMAGES
10 addressed as follows:
Counsel for Plaintiffs Kristopher Blee. Counsel for Defendant Thomas Fairhurst:
11 Ellen Blee, and Olivia Blee: Richard (Rick) M. Jacobson, Esq.
12 Douglas Mudford, Esq. JACOBSON MARKHAM LLP
BARR & MUDFORD, LLP 8950 Cal Center Drive, Ste. 210
13 1824 Court Street Sacramento, CA 95826
Redding, CA 96099 T: 916-854-5969
14
T: (530) 243-8008 F: 916-854-5965
15 F: (530) 243-1648 Email: rmjacobson@jacobsonmarkham.com
Doug@ca-lawyer.com
16 Counsel for Defendants Dan Palmer Co-Counsel for Defendant Thomas Fairhurst:
Trucking/Brokering: Benjamin R. Herzberger, Esq.
17
John P. Cotter, Esq. OFFICE OF LEGISLATIVE COUNSEL
18 Sarah K. Glatt, Esq. 925 L Street, Suite 9000
DIEPENBROCK & COTTER LLP Sacramento, CA 95814
19 1435 River Park Drive T: 916-341-8398
Suite 400 F: 916-341-8398
20
Sacramento, CA 95815 Email:
21 T (916) 565-6222 benjamin. herzberger@legistativecounsel.ca.gov
F (916) 565-6220
22 ijpc@diepenbrockcotter.com
skg@diepenbrockcotter.com
23
24 XX BY EMAIL: I caused each document to be delivered by electronic mail to the offices of
the addressee.
25
I declare under penalty of perjury under the laws of the State of California that the
26 foregoing is true and correct. Executed on January 12, 2021, in Roseville, California.
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