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FILED —
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NINA M. PATANE, Esq. (SBN 157079)
ANDREA C. AVILA, Esq. (SBN 193982) ALAMEDA GOUNTY
PATANE -GUMBERG, LLP
Attorneys at Law FER 25 2008
4 Rossi Cirele, Suite 231
Salinas,
Telephone:
California
(831)
93907
755-1461
SORETH
CLE
anaRaSf OL T
Deputy
Facsimile: (831) 755-1477
Attorneys for Defendant,
CAIRE MEDICAL SYSTEMS, INC.
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ALAMEDA
) CASE NO. RGO6286829
PUBLIC SERVICES MUTUAL )
INSURANCE COMPANY, ) NOTICE OF DEFENDANT CAIRE
) MEDICAL SYSTEMS, INC.’S
Plaintiff, ) MOTION FOR SUMMARY
) JUDGMENT OR ALTERNATIVELY,
v. ) MOTION FOR SUMMARY
) ADJUDICATION
APRIA HEALTHCARE, INC., CAIRE )
MEDICAL SYSTEMS, INC., DOES 1-15, ) J
) Date: May 13, 2008
Defendants. ) Time: 9:00 a.m:
) Dept.: 301/
) Reservation # R 793356
4
Trial Date: June 16, 2008
PLEASE TAKE NOTICE that on May 13, 2008 at 9:00 a.m., or soon thereafter as the
matter may be heard in the above-entitled Court, Defendant CAIRE MEDICAL SYSTEMS, INC.
(“CAIRE”) will move the Court for an order for summary judgment, or in the alternative, summary
adjudication against Plaintiff PUBLIC SERVICES MUTUAL INSURANCE COMPANY
(‘Plaintiff’) and in favor of CATRE.
CAIRE makes this motion pursuant to California Code of Civil Procedure § 437c on the
basis that the undisputed material facts unequivocally demonstrate that Plaintiffs causes of action
-[~
Notice of Defendant Caire Medical Systems, Inc.’sMotion for Summary Judgment or Alternatively,Motion for
Summary Adjudication
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of Negligence, Strict Liability and Breach of Implied Warranty have no merit or evidentiary
support. Plaintiff therefore has not met and cannot meet the elements requisite to establishing its
PB
claims. Accordingly, CAIRE is entitled to summary judgment as a matter of law, or in the
WY
alternative, summary adjudication as to one or more of the aforementioned causes of action.
BB
The motion isbased upon this Notice, the Separate Statement of Undisputed Material
WwW
Facts, the Memorandum of Points and Authorities, the Declaration of Andrea C. Avila and
WH
attachments thereto, the Declaration of Nina M. Patane as well as the records, files and pleadings
in this action, and such oral and other documentary evidence which may be present atthe time of
oOo
the hearing.
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Dated: February 21, 2008 PATANE * GUMBERG/LLP
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By:
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Attorneys fo pea
CAIRE MEDICAL SYSTEMS, INC.
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Notice of Defendant Caire Medical Systems, Inc.’sMotion for Summary Judgment or Alternatively,Motion for
Summary Adjudication
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PAa
Ww PROOF OF SERVICE
STATE OF CALIFORNIA -- COUNTY OF MONTEREY
WHO
I declare that I am employed in the County of Monterey, State of California. Iam
SP
over the age of eighteen years and not a party to the within cause; my business address isPatane *
A
Gumberg, 4 Rossi Circle, Suite 231, Salinas, California 93907.
NHN
On February 21, 2008, Iserved the foregoing document(s) described as:
NOTICE OF DEFENDANT CATRE MEDICAL SYSTEMS, INC.’S MOTION FOR
NDA
SUMMARY JUDGMENT OR ALTERNATIVELY, MOTION FOR SUMMARY
ADJUDICATION; DEFENDANT CAIRE MEDICAL SYSTEMS, INC.’S
CO
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION
FOR SUMMARY JUDGMENT OR ALTERNATIVELY, MOTION FOR
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SUMMARY ADJUDICATION; DECLARATION OF ANDREA C. AVILA IN
SUPPORT OF DEFENDANTS MOTION FOR SUMMARY JUDGMENT OR, IN
CO
THE ALTERNATIVE, FOR SUMMARY ADJUDICATION WITH EXHIBITS;
DECLARATION OF NINA M. PATANE IN SUPPORT OF DEFENDANTS
KF
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, FOR
SUMMARY ADJUDICATION; STATEMENT OF UNDISPUTED FACTS
LP
TABLE OF CONTENTS AND TABLE OF AUTHORTIES FOR DEFENDANTS
FORE
MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, MOTION FOR
W
SUMMARY ADJUDICATION;
FP
FSF
3) BY FACSIMILE - By transmitting via facsimile the document(s) listed above to the
fax number(s) set forth below on this date from 4 Rossi Circle, Suite 231, Salinas,
Un
FF
California 93907. The transmitting facsimile machine telephone number is831- — _
BW
Se
755-1477. A transmission report was properly issued by the transmitting facsimile
machine, and a copy of said transmission report isattached hereto.
ADA
See
(X) BY MAIL - By placing the documents listed above in a sealed envelope, addressed
BSB
FF
as.set forth below. I am readily familiar with the firm's practice for the collection
OO
and processing of correspondence. Under that practice itwould be deposited with
KF
U.S. POSTAL SERVICE on that same day with postage thereon fully prepaid at
DOD
NO
Salinas, California, in the ordinary course of business. I am aware that on motion
of the party served, service ispresumed invalid ifpostal cancellation date or
FH
PY
postage meter date is more than one day after date of deposit for mailing in
affidavit.
NBO
NY
HO
Q) BY PERSONAL SERVICE - By personally delivering the document(s) listed above
NV
to the person(s) or other proper person(s) at the address(es) set forth below.
F&F
NY
Sam Phillips, Esq. James W. Peel, Esq,
UN
WN
Borton Petrini, LLP Peel, Garcia & Stamper, LLP
NH
95 South Market Street, Suite 400 3585 W. Beechwood, Suite 101
NO
San Jose, CA 95103 Fresno, CA 93711
NAN
pp
I declare under penalty of perjury under the laws of the State of California that the
Hn
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15
Proof of Service
/ .
od
foregoing is true and correct.
uf on February 21, 2008, at Salinas, California.
WY
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“PAM KIMBALL
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Proof of Service
Preview
CC y q FILED — St NINA M. PATANE, Esq. (SBN 157079) ANDREA C. AVILA, Esq. (SBN 193982) ALAMEDA GOUNTY PATANE -GUMBERG, LLP Attorneys at Law FER 25 2008 4 Rossi Cirele, Suite 231 Salinas, Telephone: California (831) 93907 755-1461 SORETH CLE anaRaSf OL T Deputy Facsimile: (831) 755-1477 Attorneys for Defendant, CAIRE MEDICAL SYSTEMS, INC. SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA ) CASE NO. RGO6286829 PUBLIC SERVICES MUTUAL ) INSURANCE COMPANY, ) NOTICE OF DEFENDANT CAIRE ) MEDICAL SYSTEMS, INC.’S Plaintiff, ) MOTION FOR SUMMARY ) JUDGMENT OR ALTERNATIVELY, v. ) MOTION FOR SUMMARY ) ADJUDICATION APRIA HEALTHCARE, INC., CAIRE ) MEDICAL SYSTEMS, INC., DOES 1-15, ) J ) Date: May 13, 2008 Defendants. ) Time: 9:00 a.m: ) Dept.: 301/ ) Reservation # R 793356 4 Trial Date: June 16, 2008 PLEASE TAKE NOTICE that on May 13, 2008 at 9:00 a.m., or soon thereafter as the matter may be heard in the above-entitled Court, Defendant CAIRE MEDICAL SYSTEMS, INC. (“CAIRE”) will move the Court for an order for summary judgment, or in the alternative, summary adjudication against Plaintiff PUBLIC SERVICES MUTUAL INSURANCE COMPANY (‘Plaintiff’) and in favor of CATRE. CAIRE makes this motion pursuant to California Code of Civil Procedure § 437c on the basis that the undisputed material facts unequivocally demonstrate that Plaintiffs causes of action -[~ Notice of Defendant Caire Medical Systems, Inc.’sMotion for Summary Judgment or Alternatively,Motion for Summary Adjudication @ | e of Negligence, Strict Liability and Breach of Implied Warranty have no merit or evidentiary support. Plaintiff therefore has not met and cannot meet the elements requisite to establishing its PB claims. Accordingly, CAIRE is entitled to summary judgment as a matter of law, or in the WY alternative, summary adjudication as to one or more of the aforementioned causes of action. BB The motion isbased upon this Notice, the Separate Statement of Undisputed Material WwW Facts, the Memorandum of Points and Authorities, the Declaration of Andrea C. Avila and WH attachments thereto, the Declaration of Nina M. Patane as well as the records, files and pleadings in this action, and such oral and other documentary evidence which may be present atthe time of oOo the hearing. 0 Dated: February 21, 2008 PATANE * GUMBERG/LLP OO eSellUmLeelle NYO KK By: PO WO ANDRESS Attorneys fo pea CAIRE MEDICAL SYSTEMS, INC. Fe B FP A HDB FF ST Be wWO Se OD KF DODO NO YF WN NO YN HO WN FP VN A NY NH NYO NY NY Oo no -2- Notice of Defendant Caire Medical Systems, Inc.’sMotion for Summary Judgment or Alternatively,Motion for Summary Adjudication L e PAa Ww PROOF OF SERVICE STATE OF CALIFORNIA -- COUNTY OF MONTEREY WHO I declare that I am employed in the County of Monterey, State of California. Iam SP over the age of eighteen years and not a party to the within cause; my business address isPatane * A Gumberg, 4 Rossi Circle, Suite 231, Salinas, California 93907. NHN On February 21, 2008, Iserved the foregoing document(s) described as: NOTICE OF DEFENDANT CATRE MEDICAL SYSTEMS, INC.’S MOTION FOR NDA SUMMARY JUDGMENT OR ALTERNATIVELY, MOTION FOR SUMMARY ADJUDICATION; DEFENDANT CAIRE MEDICAL SYSTEMS, INC.’S CO MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY, MOTION FOR oO SUMMARY ADJUDICATION; DECLARATION OF ANDREA C. AVILA IN SUPPORT OF DEFENDANTS MOTION FOR SUMMARY JUDGMENT OR, IN CO THE ALTERNATIVE, FOR SUMMARY ADJUDICATION WITH EXHIBITS; DECLARATION OF NINA M. PATANE IN SUPPORT OF DEFENDANTS KF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION; STATEMENT OF UNDISPUTED FACTS LP TABLE OF CONTENTS AND TABLE OF AUTHORTIES FOR DEFENDANTS FORE MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, MOTION FOR W SUMMARY ADJUDICATION; FP FSF 3) BY FACSIMILE - By transmitting via facsimile the document(s) listed above to the fax number(s) set forth below on this date from 4 Rossi Circle, Suite 231, Salinas, Un FF California 93907. The transmitting facsimile machine telephone number is831- — _ BW Se 755-1477. A transmission report was properly issued by the transmitting facsimile machine, and a copy of said transmission report isattached hereto. ADA See (X) BY MAIL - By placing the documents listed above in a sealed envelope, addressed BSB FF as.set forth below. I am readily familiar with the firm's practice for the collection OO and processing of correspondence. Under that practice itwould be deposited with KF U.S. POSTAL SERVICE on that same day with postage thereon fully prepaid at DOD NO Salinas, California, in the ordinary course of business. I am aware that on motion of the party served, service ispresumed invalid ifpostal cancellation date or FH PY postage meter date is more than one day after date of deposit for mailing in affidavit. NBO NY HO Q) BY PERSONAL SERVICE - By personally delivering the document(s) listed above NV to the person(s) or other proper person(s) at the address(es) set forth below. F&F NY Sam Phillips, Esq. James W. Peel, Esq, UN WN Borton Petrini, LLP Peel, Garcia & Stamper, LLP NH 95 South Market Street, Suite 400 3585 W. Beechwood, Suite 101 NO San Jose, CA 95103 Fresno, CA 93711 NAN pp I declare under penalty of perjury under the laws of the State of California that the Hn oOo 15 Proof of Service / . od foregoing is true and correct. uf on February 21, 2008, at Salinas, California. WY (UY a moa 7 WwW “PAM KIMBALL B® HN DN oN ‘oO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 Proof of Service