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  • Blee, Kristopher et al  vs. Fairhurst, Thomas J et al(23) Unlimited Other PI/PD/WD document preview
  • Blee, Kristopher et al  vs. Fairhurst, Thomas J et al(23) Unlimited Other PI/PD/WD document preview
  • Blee, Kristopher et al  vs. Fairhurst, Thomas J et al(23) Unlimited Other PI/PD/WD document preview
  • Blee, Kristopher et al  vs. Fairhurst, Thomas J et al(23) Unlimited Other PI/PD/WD document preview
  • Blee, Kristopher et al  vs. Fairhurst, Thomas J et al(23) Unlimited Other PI/PD/WD document preview
  • Blee, Kristopher et al  vs. Fairhurst, Thomas J et al(23) Unlimited Other PI/PD/WD document preview
  • Blee, Kristopher et al  vs. Fairhurst, Thomas J et al(23) Unlimited Other PI/PD/WD document preview
  • Blee, Kristopher et al  vs. Fairhurst, Thomas J et al(23) Unlimited Other PI/PD/WD document preview
						
                                

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 10 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 19 Defendants. Complaint Filed: 08/04/2020 20 Second Amended Complaint Filed: 12/04/2020 21 Trial Date: None 22 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: 26 ...(d) Records of (1) any court of this state...” 27 28 // 1 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. 13 14 DATED: February 24, 2021 DIEPENBROC K &CO 7 TER DLP | f 15 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. 19 20 21 22 23 24 25 26 27 28 2 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 E E 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 10 KRISTOPHER BLEE, ELLEN BLEE, and) No. 20CV01521 11 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. 28 //f 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. 27 // 28 //f 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 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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. 13 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. 15 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 17 Electronic Service only. 18 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. 2 22 23 M IN E. PATE 24 25 26 27 28 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, 10 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 13 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 16 17 18 19 20 21 22 23 24 25 26 27 28 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 2 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 26 —_— 27 MARY. TALMACHOFF 28 Attorneys for Defendant PAUL FRANCO dba PAUL FRANCO TRUCKING, INC. (erroneously sued as PAUL FRANCO TRUCKING, INC.) 4 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. 27 28