On 11/09/2016 EDUARDO BARBA filed a Personal Injury - Other Personal Injury lawsuit against BULK TRANSPORTATION. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.
Pending - Other Pending
DOES 1 THROUGH 50
J&R FLEET SERVICES LLC DOE 1
ROPER PUMP COMPANY
RANGER INC. ROE 1
KELLEY ROBERT L.
KELLEY ROBERT LANE
HERZOG VANESSA K.
CONSTANTINIDES STRATTON PETER
PHILLIPS DAVID MATTHEW
MILLER WEYD-ANNE N.
KADER NATASHA A.
JOHNSON JERRI LYNN ESQ.
HIRSCHBERG MARK LAWRENCE
6/11/2018: ANSWER TO UNVERIFIED COMPLAINT
8/22/2018: CASE MANAGEMENT STATEMENT
9/14/2018: NOTICE OF CHANGE OF MAILING ADDRESS AND TELEPHONE NUMBER
11/8/2018: Amendment to Complaint (Fictitious/Incorrect Name)
1/3/2019: Proof of Personal Service
4/4/2019: Motion to Compel Further Discovery Responses
4/11/2019: Request for Judicial Notice
4/25/2019: Case Management Order
4/26/2019: Notice of Change of Address or Other Contact Information
3/14/2017: DEFENDANT BULK TRANSPORTATION'S CROSS COMPLAINT FOR: 1. INDEMNITY ; ETC
Notice of Change of Address or Other Contact Information; Filed by Ranger, Inc. (Defendant)Read MoreRead Less
at 09:00 AM in Department 39; Order to Show Cause Re: (Dism of Doe Defendants, and Roe Cross-Defendants)Read MoreRead Less
at 09:00 AM in Department 39; Hearing on Motion for Summary Judgment (by Cross-Defendant, Roper Pump Company)Read MoreRead Less
at 09:00 AM in Department 39; Hearing on Motion for Summary Judgment (by Defendant, Bulk Transportation)Read MoreRead Less
at 09:00 AM in Department 39; Case Management ConferenceRead MoreRead Less
Order Appointing Court Approved Reporter as Official Reporter Pro TemporeRead MoreRead Less
Case Management Order; Filed by ClerkRead MoreRead Less
Response ( to Plaintiffs Opposition to Bulk Transportation Separate Statement); Filed by Bulk Transportation (Defendant)Read MoreRead Less
Response (to Roper Pump Company Separate Statement of Undisputed Material); Filed by Bulk Transportation (Defendant)Read MoreRead Less
Reply (to Roper Pump Company Opposition to Motion for Summary Judgment); Filed by Bulk Transportation (Defendant)Read MoreRead Less
DEFENDANT, BULK TRANSPORTATION'S ANSWER TO PLAINTIFF'S COMPLAINTRead MoreRead Less
DEFENDANT BULK TRANSPORTATION'S CROSS COMPLAINT FOR: 1. INDEMNITY ; ETCRead MoreRead Less
Summons; Filed by Bulk Transportation (Defendant)Read MoreRead Less
Answer; Filed by Bulk Transportation (Defendant)Read MoreRead Less
Cross-Complaint; Filed by Bulk Transportation (Cross-Complainant)Read MoreRead Less
Proof of Service (not Summons and Complaint); Filed by Eduardo Barba (Plaintiff)Read MoreRead Less
Proof of Service of Summons and ComplaintRead MoreRead Less
Complaint; Filed by Eduardo Barba (Plaintiff)Read MoreRead Less
ComplaintRead MoreRead Less
Summons; Filed by Eduardo Barba (Plaintiff)Read MoreRead Less
Case Number: BC639369 Hearing Date: September 9, 2021 Dept: 39
Eduardo Barba v.\r\nBulk Transportation, et al.\r\n\r\n
Ex Parte\r\nApplication to Advance Hearing on Motion for Good Faith Determination\r\n\r\n
Case No. BC639369\r\n\r\n
The Court grants the ex parte application\r\nto advance the hearing on Defendant Roper Pump Company’s motion for\r\ndetermination of good faith settlement. The Court shall hear the motion\r\non September 28, 2021, at 8:30 a.m. The moving party shall provide notice\r\nand file proof of such with the Court.\r\n\r\n
Case Number: BC639369 Hearing Date: August 27, 2021 Dept: 39
Eduardo Barba v.\r\nBulk Transportation, et al.\r\nCase No. BC639369\r\n\r\n
Motion to Compel\r\nMental Health Examination of Plaintiff\r\n\r\n
Plaintiff\r\nEduardo Barba (“Plaintiff”), a tanker truck driver, was injured in the course\r\nof an employment contract with Bulk Transportation (“Bulk”). Specifically, Plaintiff alleges that his\r\njacket sleeve became entangled in the running power take-off (“PTO”) driveshaft\r\nof his truck while he was working on a pump on the undercarriage with the motor\r\nrunning. Bulk filed a cross-complaint\r\nfor indemnity, contribution, and declaratory relief against Roper Pump Company\r\n(“Roper”), following which Plaintiff added Roper, as well as Ranger, Inc.\r\n(“Ranger”), as Doe defendants. Plaintiff\r\nalso added J&R Fleet Services, LLC (“J&R”) as a Doe defendant.\r\n\r\n
Plaintiff\r\nfiled this action on November 9, 2016, and the current trial date is November\r\n8, 2021. On April 9, 2021, Roper filed\r\na motion to compel a mental health examination of Plaintiff and to continue the\r\ntrial date to accommodate the examination. \r\nRoper withdrew the motion on August 18, 2021. Bulk filed a joinder on August 16, 2021, but\r\nJ&R filed a joinder after the motion had been withdrawn.\r\n\r\n
Defendants\r\ndemonstrate good cause for a mental health examination of Plaintiff because Plaintiff\r\nasserts that he suffers from post-traumatic stress disorder and severe\r\nemotional distress as a result of the accident. \r\nTherefore, it appears to the Court that Defendants are entitled to\r\nconduct a mental health examination of Plaintiff, and the Court would have\r\ngranted this motion but for two issues.\r\n\r\n
As\r\nan initial matter, the moving party withdrew the motion, and the two joinders\r\nare defective. The joinder by Bulk was\r\nuntimely given the hearing date. The\r\njoinder by J&R was defective because it was filed after the motion had been\r\nwithdrawn. The Court could cure the\r\ndefect in notice by continuing the hearing, but that would not resolve the\r\nlarger issue.\r\n\r\n
More\r\nimportant, Defendants seek to have Plaintiff evaluated by an expert who is not\r\navailable until January 25, 2022, approximately five months from now, and\r\nseveral months after the current trial date. \r\nIt is unclear why this issue has arisen shortly before trial. The case was filed on November 9, 2016. Plaintiff stipulated to a mental health examination\r\nin January 2020, but he canceled the examination in February 2020, and the\r\nmotion was not filed until about 14 months later. Although there is good cause to order a\r\nmental health examination, there is not good cause to continue the trial date\r\nto accommodate the examination. \r\nTherefore, the motion is denied.\r\n\r\n
CONCLUSION AND ORDER\r\n\r\n
The Court finds good cause to order a mental\r\nhealth examination of Plaintiff. \r\nNevertheless, the Court denies the motion, as there is not good cause to\r\ncontinue the trial date to accommodate the mental health examination for the\r\nreasons discussed in this order. This\r\norder is without prejudice to Defendants moving to compel a mental health\r\nexamination of Plaintiff with an expert who is available before the current\r\ntrial date. If Defendants intend to do\r\nso, the Court orders the parties to meet-and-confer by telephone (not email)\r\nbefore any motion is filed to discuss whether Plaintiff will stipulate to the\r\nexamination in light of the findings made in this order. If Plaintiff opposes such a motion without\r\ngood cause, the Court may be more amenable to continuing the trial date at that\r\ntime. Counsel for Bulk shall provide\r\nnotice and file proof of such with the Court. \r\n'b'
Case Number: BC639369 Hearing Date: August 12, 2021 Dept: 39
Eduardo Barba v.\r\nBulk Transportation\r\n\r\n
Case No. BC639369\r\n\r\n
Ex Parte\r\nApplication to Advance Hearing on Motion to Compel\r\n\r\n
Mental Examination\r\nof Plaintiff and to Continue Trial\r\n\r\n
The Court\r\ngrants the ex parte application to advance the hearing on Defendant Roper Pump\r\nCompany’s motion to compel a mental examination of Plaintiff. The Court advances the hearing from November\r\n1, 2021, to August 30, 2021, at 9:00 a.m. \r\n\r\n\r\n
The Court\r\ndenies the ex parte application to continue trial, as the issue is not yet\r\nripe. If the Court denies the motion,\r\nthere would be no need to continue the trial date. The Court shall hold a trial setting conference\r\non August 30, 2021, at 9:00 a.m., in the event that it grants the motion.\r\n\r\n
Counsel for Defendant Roper Pump\r\nCompany shall provide notice and file proof of such with the Court.'
Case Number: BC639369 Hearing Date: May 11, 2021 Dept: 39
Eduardo Barba v. Bulk Transportation, et al.
Case No. BC639369
Motion for Summary Judgment
Plaintiff Eduardo Barba (“Plaintiff”), a tanker truck driver, was injured in the course of employment contract with Bulk Transportation (“Bulk”). Specifically, Plaintiff alleges that his jacket sleeve became entangled in the running power take-off (“PTO”) driveshaft of his truck while he was working on a pump on the undercarriage with the motor running. Bulk filed a cross-complaint for indemnity, contribution, and declaratory relief against Roper Pump Company (“Roper”), following which Plaintiff added Roper, as well as Ranger, Inc. (“Ranger”), as Doe defendants. Now, Roper moves for summary judgment on both the complaint and cross-complaint, arguing that it did not manufacture, install, or repair the equipment at issue. Plaintiff and Bulk oppose the motion, which is granted.
Plaintiff is a tanker truck driver who owned his own truck and worked as an independent contractor. (Plaintiff’s Response to Defendant’s Separate Statement, ¶¶ 4-5.) On November 12, 2014, Plaintiff, while working for Bulk, delivered liquid product, a flammable detergent, to a client in Carrollton, Texas. (Id., ¶ 4.) While offloading the product, Plaintiff and the customer noticed “a pump leak that was more than the usual amount.” (Id., ¶ 6.) Plaintiff retrieved a wrench from the cab of his vehicle and went underneath truck while the engine was running to stem the leak. (Ibid.) Plaintiff alleges that: “While making such an attempt his right sleeve became entangled, with an unseen unguarded drive shaft that was spinning next to the pump.” (Ibid.) Plaintiff admits that “the sleeve of [his] shirt was caught on the spinning, unseen, unguarded drive shaft resulting in amputation of [his] right major arm.” (Id., ¶ 7.)
Plaintiff alleges in his complaint that the defendants “fail[ed] to provide adequate and sufficient safety devices or properly install or repair said safety devices and/or other parts, appliances and/or appurtenances in and about the area of the PTO and pump assembly and attached parts and installation of the truck owned by Plaintiff thereby creating a hazardous condition . . . .” (Complaint, ¶ 4.) Plaintiff alleges that Defendants “knew, or in the exercises of reasonable care should have known, that the work Plaintiff and others were engaged in would necessarily create during the course of its progress a condition involving a risk of harm to others, including Plaintiff, failed to take such precautions or to otherwise remedy such defective condition by either reinstalling the PTO and pump in a different location on the truck assembly or by installing a safety cover or guard, or to warn individuals working or said truck owner of said conditions . . . .” (Complaint, ¶ 5.) In other words, Plaintiff’s theory of the case is that the pump manufacturer should have manufactured the pump with a safety cover or guard, or should have located the pump in a different location on the truck.
Plaintiff filed his complaint on November 9, 2016. Bulk filed its cross-complaint against Roper and Ranger on March 14, 2017. Plaintiff added Roper and Ranger as defendants on November 8, 2018. On February 19, 2019, Roper filed a motion for summary judgment on Plaintiff’s complaint (but not Bulk’s cross-complaint) arguing that it did not manufacture or install the pump at issue. The Court (Feffer, J.) held a hearing on August 6, 2019, and denied the motion.
“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.) In ruling on the motion, “the court may not weigh the plaintiff's evidence or inferences against the defendant[’s] as though it were sitting as the trier of fact.” (Id. at 856.) However, the court “must . . . determine what any evidence or inference could show or imply to a reasonable trier of fact.” (Ibid., emphasis original.)
A. Plaintiff’s Objections
1. Objection #1 – Overruled. In the alternative, the Court need not rule on this objection, per Code of Civil Procedure section 437c(q), because it elects to reconsider the prior ruling on Roper’s motion for summary judgment based upon its inherent authority.
2. Objection #2 – See above.
3. Objection #3 – See above.
4. Objection #4 – See above.
5. Objection #5 – See above.
6. Objection #6 – See above.
7. Objection #7 – See above.
8. Objection #8 – See above.
B. Bulk’s Objections
1. Objection #1 – Overruled.
2. Objection #2 – Overruled.
3. Objection #3 – Overruled.
4. Objection #4 – The Court need not rule on this objection, per Code of Civil Procedure section 437c(q).
A. Procedural Issues
Plaintiff and Bulk first argue that this motion is barred under Code of Civil Procedure section 437c(f)(1), because it is a successive motion for summary judgment on the same issue. Section 437c(f)(1) does not bar this motion for two reasons. First, Roper never moved for summary judgment against Bulk’s cross-complaint, as the first motion was exclusive to Plaintiff’s complaint. (See Roper’s Motion for Summary Judgment, dated February 14, 2019.) Therefore, at a minimum, Roper can move for summary judgment against Bulk. Since the issues are the same in both Plaintiff’s complaint and Bulk’s cross-complaint, as a practical matter, in deciding Roper’s motion against Bulk, it necessarily would decide Roper’s motion against Plaintiff.
Putting that aside, however, Roper has demonstrated good cause to proceed with a successive motion for summary judgment. Roper relies on new evidence, specifically, color and higher resolution photographs produced by Plaintiff on March 22, 2019, based upon which it was able to develop evidence that the pump at issue was not, in fact, manufactured by Roper. Specifically, based upon those photographs, Ranger’s person most qualified (Britt Rast) and Roper’s person most qualified (Edmond “Tate” Coghlan) were able to provide dispositive testimony at their depositions on June 16 and August 17, 2020, respectively. This constitutes good cause to proceed with the motion. In addition, the Court notes that Plaintiff failed to preserve the relevant evidence in this case, viz., the actual pump. Therefore, higher resolution photographs have more significance than they might otherwise.
Finally, the Court has inherent authority to reconsider any prior ruling. (See Le Francois v. Goel (2005) 35 Cal.4th 1094, 1096-1097.) In the alternative, the Court elects to decide this motion in the event that Roper’s proffer does not constitute good cause under section 437c(f)(1). Plaintiff and Bulk Transportation sued both Roper and Ranger—even though only one manufactured the pump at issue—because they did not know which one is liable. The interests of judicial economy are not served by allowing Plaintiff to proceed to trial against Roper when there is insufficient evidence that Roper manufactured the pump at issue.
B. The Merits
Reaching the merits, Roper proffers evidence that it did not manufacture the pump at issue. Roper’s Vice President of Sales & Marketing, Edmond “Tate” Coghlan examined the higher resolution photographs, as well as an exemplar of Roper’s pump, and testified that “the pump on the plaintiff’s truck was clearly not a Roper pump.” (Declaration of Robert L. Kelley, Exh. C, pp. 92-93; see also Declaration of Jerri L. Johnson, Exh. R, pp. 51-57, 141-157.) Coghlan testified that the part number on Plaintiff’s pump—5008—is not a Roper part number because: “Roper has never produced that number. All Roper part numbers are alphanumeric. They have been since the late 1800s. So we do not have any party numbers that are strictly numeric.” (Declaration of Jerri L. Johnson, Exh. R, p. 154.) Roper’s part number for the same size pump is P3-C200. (Ibid.) Coghlan testified that the part number on Plaintiff’s pump—5008—is the same part number as the one on the Ranger exemplar. (Ibid.)
This testimony standing alone would satisfy Roper’s burden on summary judgment. However, Coghlan conducted a “piece by piece” comparison of Plaintiff’s pump to a Roper pump of the same size to support his conclusion that Plaintiff’s pump was not manufactured by Roper. (Id., Exh. R., p. 149.) Coghlan testified that the faceplate, case, and backplate on Plaintiff’s pump did not “originate” from Roper, and “are the Ranger equivalents.” (Id., pp. 54-55.) Coghlan testified that the casting on Plaintiff’s pump was not a Roper casting and that he believes “it is a Ranger casting.” (Id., pp. 55-56.) Coghlan testified that the “gusset on the Roper pump is a straight-line angle with no deviation in shape” and “[w]hat’s pictured on the [Plaintiff] photos is a curve that is a rounded gusset,” meaning “[i]t is not representative of the Roger pump.” (Id., Exh. R, p. 61.) Coghlan testified that Plaintiff’s “bolt holes” are from Ranger because “Ranger drills a shallow counterbore where the bolt head rides,” and “Roper does not do that.” (Id., Exh. R, p. 66.) Coghlan testified that Roper’s pump of this size is painted red unless the end user bought it and repainted it. (Id., Exh. R, p. 150.) Coghlan testified that Roper has never made a pump of the relevant size with an indentation or “dimple,” like that on Plaintiff’s pump. (Declaration of Jerri L. Johnson, Exh. R, p. 153.) Finally, Coghlan testified that the warning label on Plaintiff’s pump is not consistent with Roper’s warning label in numerous ways. (Id., Exh. R, p. 156.) Finally, Coghlan testified that Roper pumps are not “chamfered,” meaning that there is a sharp corner instead of a flat edge that bevels down, like those on Plaintiff’s pump. (Id., Exh. R, pp. 51-56, 149-150.)
Roper also relies on the deposition of Ranger’s person most qualified, Britt Rast, who testified that Plaintiff’s pump had characteristics of Ranger’s pumps. Rast testified that “5008” is Ranger’s part number, which means that the relief valve is a Ranger part. (Id., Exh. P, p. 23.) Rast testified that Ranger’s pumps of the relevant size are blue. (Id., Exh. P, p. 131.) Rast testified that only Ranger’s pumps have an indentation or “dimple” like Plaintiff’s pump. (Id., Exh. P, p. 141.) Rast testified that the warning label on Plaintiff’s pump is Ranger’s warning label. (Id., Exh. P, p. 142-144.)
Finally, Plaintiff’s testimony does not tie the pump to Roper. Plaintiff testified that he purchased the pump from another driver at Bulk:
Q: And did you have to purchase the pump, or did you buy it from the shop where you had it installed?
A: I bought it.
Q: And where did you buy the bump [sic] from>
A: At the offices there at Bulk, they have some items that they sell that are located there. And that’s where I bought it. From a driver.
Q: So, did you buy the pump from the driver or from Bulk?
A: From the . . . There’s a wall that has a -- there’s a wall, and they have some items that they sell there. . . . [T]here was a chalkboard, like the teachers used to use. And they would put documents there to sell.
. . .
Q: Okay. So the pump you purchased, was it new or used?
Q: And was the pump being sold by a driver?
Q: Like the driver had taken it off his truck and was selling it?
A: No. He had -- no. He was a worker there. He had an extra tractor, and he took it off of that one.
. . .
Q: And what was the name of this driver?
A: I recall that his name was Willie, but I can’t recall his last name.
Q: And was he an independent-contractor driver?
Q: And did he put, like, an ad up in his wall, advertising the pump for sale?
Q: And what did the advertisement say?
A: It said, “Pump used to unload flammables,” and the name and number of the driver.
Q: Okay. So you saw this ad and called the driver.
Q: And how much did he want for the pump?
A: I recall that it was $1,000.
(Id., Exh. M, pp. 63-66.) When asked, Plaintiff testified that he did not know what company manufactured the pump, and he never received a manual or anything else with it. (Id., Exh. M, p. 68.) Plaintiff then took the pump to a mechanic named “Pollo” who worked at Bulk but who did freelance work on the weekends. (Id., Exh. M, p. 69.) Pollo installed the pump at a yard, not an actual mechanic shop. (Id., Exh. M, p. 71.) None of this testimony ties the pump at issue to Roper.
Based upon the foregoing, Roper has satisfied its burden on summary judgment, shifting the burden to Plaintiff and Bulk to proffer sufficient evidence to give rise to a triable issue. Plaintiff’s theory of the case is that the company that manufactured the pump should have included a safety cover/guard, or should have designed the pump to be placed in a different location. This theory requires Plaintiff and Bulk to proffer sufficient evidence that Roper manufactured the pump.
As an initial matter, Plaintiff does not proffer the pump itself. According to Bulk, “Plaintiff sold his vehicle shortly after the incident, which included a sale of the subject pump located thereon. Accordingly, neither Roper nor Bulk have had the opportunity to inspect and fully ascertain the manufacturer of the pump as a whole or its component parts.” (Bulk’s Opposition, p. 9.) The Court is unclear why Plaintiff and/or Bulk did not seek to conduct a vehicle inspection, which is possible even if the vehicle was sold to a third-party. Regardless, given Roper’s evidence, the lack of availability of the pump itself prejudices Plaintiff and Bulk, not Roper, since it may have provided evidence with which Plaintiff and Bulk could oppose this motion and prevail at trial. Even in the absence of the pump, neither Plaintiff nor Bulk provide any expert testimony suggesting that the pump was manufactured by Roper, not Ranger.
Plaintiff and Bulk pin their hopes on one invoice, dated April 11, 2014, reflecting a repair of Plaintiff’s truck. The invoice states that Plaintiff’s “[R]oper pump leaking repack it.” (Ibid.) Bulk installed a “Roper Packing Set,” which was Part Identification Number N43-1, on Plaintiff’s truck. (Ibid.) The invoice states that a quantity of four is $29.08. (Ibid.) However, this invoice is not sufficient evidence that Plaintiff’s pump actually was manufactured by Roper. The invoice necessarily means only that Bulk’s mechanic used Roper’s packing set to fix Plaintiff’s pump. This is consistent with Coghlan’s testimony, cited by Plaintiff.
Q: What should [your declaration] say?
A: Packing sets are not interchangeable for use with non-Roper pumps. And on the pump -- the pump on the plaintiff’s truck was clearly not a Roper pump.
Q: Did you read this declaration before signing it?
A: I read it. I apparently read it and didn’t catch that.
Q: Okay. And you did not catch that you were not in Los Angeles as well, correct?
A: Well, I was confused on that.
Q: Okay. So, it’s your contention packing sets are not interchangeable for use with non-Roper pumps, but you previously told me that you heard about it happening, correct?
A: I have said I heard of that happening, yes. It doesn’t mean we endorse it or agree that it’s correct.
(Declaration of Robert L. Kelley, Exh. C, pp. 92-93.)
More important, the mechanic testified that he used Roper’s seals because he thought
Plaintiff’s pump was a Roper, but his testimony reveals that was simply an assumption:
Q: You’ve never seen a Ranger pump?
Q: What kind of pump were you working on when you did the repair that we’ve been talking about on [Plaintiff’s] truck?
A: I thought it was a Roper pump.
Q: And is there any reason why, as you sit here today, you thought that?
A: Because all we install there is Roper pumps.
Q: And I think what you’re telling me is you’ve never seen a Ranger pump; right?
Q: On this pump repair, was there anything about the pump that led you to believe at that time that it was a Roper pump?
. . .
A: Yes. . . . Because it looked like the pumps we always install.
Q: But you’ve never seen a Ranger pump. So if a Ranger pump looked very much like a Roper pump, you might not be able to say that; right?
. . .
Q: And how do you know it’s a Roper pump?
A: Because all we do is put Roper pumps. And when I looked at it, it looked like a Roper pump.
. . .
Q: You didn’t install it?
A: No, I didn’t install it.
Q: Is it correct that you didn’t install it?
Q: Okay. And is it correct that this particular truck was not a Bulk-owned truck?
Q: And is it correct that someone else installed it?
Q: So is it correct that you never saw the packaging for this pump?
Q: And is it correct that you don’t know what color the pump was when it was originally placed on that truck?
(Id., Exh. U, pp. 38-39, 156-157, 170-171, 177-178.) This testimony establishes that the reference on the invoice to the pump being a Roper pump is nothing more than speculation. In other words, the invoice establishes only that the mechanic assumed the pump was manufactured by Roper and used the respective part to repair it, and not that the pump actually was manufactured by Roper.
The opposing parties make other arguments, none of which is persuasive. The opposing parties argue that the pump is composed of multiple parts, and Roper’s evidence establishes, at best, that only some of the parts were manufactured by Ranger. The Court disagrees. The evidence proffered by Roper is sufficient to satisfy its burden on summary judgment that it did not manufacture the pump. Coghlan expressly testified that “the pump on the plaintiff’s truck was clearly not a Roper pump.” (Declaration of Robert L. Kelley, Exh. C, pp. 92-93.) Coghlan explained his conclusion in (painstaking) detail. Roper also relies on the other evidence discussed above. This is sufficient to satisfy Roper’s burden, shifting the burden to Plaintiff and Bulk to proffer sufficient evidence that Roper manufactured the pump.
The opposing parties argue that some of the parts on the pump were, in fact, manufactured by Roper. The opposing parties are “missing the forest for the trees,” as they say, because they lose sight of Plaintiff’s allegations. Plaintiff alleges that Roper was negligent by not installing a safety cover/guard or locating the pump elsewhere on the truck. This is clear in Plaintiff’s opposition to Roper’s motion:
Clearly, defendant held a duty to the users of its pumps. Defendant breached that duty by not installing guards and mounting provisions or warning tags or even providing guards, manufacturing guards or advertising plaintiff [sic] where he could purchase them. Furthermore, defendant does not provide any dedicated mounting pads for guards to be mounted.
(Plaintiff’s Opposition, p. 18:18-22.) Therefore, Plaintiff and Bulk must establish that Roper manufactured the pump at issue. To the extent Plaintiff and Bulk argue that the pump necessarily was manufactured by Roper because some of the parts were manufactured by Roper, there is insufficient evidence to give rise to a triable issue. As discussed, the mere fact that Bulk’s mechanic used Roper’s packing set to repair Plaintiff’s pump does not mean the pump was manufactured by Roper, since he testified that he merely assumed it was.
Plaintiff and Bulk focus heavily on a red flange on Plaintiff’s truck that originated from Roper. (Declaration of Robert L. Kelley, Exh. B.) Essentially, Plaintiff and Bulk argue that this red flange proves the pump was manufactured by Roper. Not so. According to Coghlan’s testimony—on which Plaintiff relies—the flange is not part of the pump because the pumps can be ordered with a different flange or no flange. (Id., Exh. B, p. 101.) Coghlan testified that Roper’s pumps are sold “with or without” the flanges, and “[w]hen the driver or the maintenance company replaces the pump, it’s much easier to just reuse the old flanges.” (Id., Exh. C, p. 44.) Coghlan also testified that Roper and Ranger flanges are compatible. (Id., Exh. C, p. 92.) Therefore, the mere fact that Roper’s flange was on Plaintiff’s truck does not necessarily mean that the pump was manufactured by Roper. It means only that someone used Roper’s flange on Plaintiff’s pump.
Bulk argues that Plaintiff’s pump leaked because of Roper’s part—the packing set—and therefore this creates a triable issue. Again, Bulk ignores Plaintiff’s theory of the case, which is that the pump was defective because it lacked a safety cover/guard or should have been positioned elsewhere on the truck. Whether Roper’s packing set caused the leak is not relevant to that theory. But even if the Court entertained Bulk’s argument, Coghlan’s testimony makes clear that Bulk’s mechanic should not have used Roper’s packing set with a Ranger pump, meaning that Bulk—not Roper—would be responsible for the leak.
The Court has considered Plaintiff and Bulk’s remaining arguments and finds none persuasive. Therefore, the Court grants Roper’s motion for summary judgment.
CONCLUSION AND ORDER
After four-and-one-half years of litigation, Plaintiff and Bulk have lost sight of Plaintiff’s theory of the case. Plaintiff alleges that Roper failed to install a safety cover/guard or position its pump elsewhere on trucks. This theory requires Plaintiff and Bulk to establish that Roper, in fact, manufactured the pump at issue (and therefore failed to include the necessary safety features). Roper proffers sufficient evidence that Plaintiff’s pump was manufactured by Ranger, not Roper, requiring Plaintiff and Bulk to rebut that evidence. Nowhere in their oppositions do Plaintiff or Bulk provide a concise statement of the evidence purportedly giving rise to a triable issue. It appears that Plaintiff and Bulk rely on a single mechanic’s invoice from a repair on Plaintiff’s truck stating “[R]oper pump leaking replace it” and noting that the mechanic used a “Roper Packing Set.” Yet, the testimony of Bulk’s mechanic makes clear that he merely assumed it was a Roper pump because Bulk trucks usually had Roper pumps. Plaintiff and Bulk also try to argue that the existence of a Roper flange on Plaintiff’s truck necessarily means that the pump was manufactured by Roper. But neither proffers sufficient evidence to overcome Roper’s evidence that the flanges are separate from the pump itself and interchangeable with Ranger’s pumps and are often reused when someone installs a new pump. Simply, Plaintiff and Bulk proffer no evidence suggesting that the pump mechanism—which is the device that should have had a security cover/guard or should have been positioned elsewhere—was manufactured by Roper. Therefore, the Court grants Roper’s motion for summary judgment.
Case Number: BC639369 Hearing Date: December 02, 2020 Dept: 39
The court GRANTS the unopposed motion and ORDERS non-party Juan A. Rodriguez (“Rodriguez”) to comply with Defendant J&R Fleet Services, LLC’s (“J&R Fleet”) deposition subpoena and to appear for a noticed deposition to occur within 30 days of this order, or on a date mutually agreed upon by J&R Fleet and Rodriguez, and to produce all requested documents. Defendant J&R Fleet Services, LLC’s request for sanctions is DENIED for failure to request sanctions in the notice of the motion.
Defendant J&R Fleet is instructed to give notice.
This case arises from allegations that defendant Bulk Transportation negligently owned, operated, designed, or maintained Plaintiff Eduardo Barba’s (“Barba” or “Plaintiff”) truck (the “truck”) in such a manner so as to cause injury to Plaintiff while he was working for Bulk Transportation. Compl. ¶ 4. Plaintiff alleges he suffered injuries while performing maintenance on the truck due to the improper installation, repair, or replacement of a metal safety wire lock on the Power Take-Off (“PTO”) related drive shaft that led to injuries, including the severing of his arm. Compl. ¶¶ 4-6.
In the Complaint, Plaintiff asserts one cause of action for negligence. On January 23, 2018, Plaintiff added Defendant J&R Fleet Services, LLC (“J&R Fleet”) as a Doe Defendant in this action. On November 8, 2018, Plaintiff additionally added Roper Pump Company (“Roper”) and Ranger, Inc. (“Ranger”) as Doe Defendants.
Defendant Bulk Transportation filed a Cross-Complaint on March 14, 2017, alleging three causes of action for: (1) indemnity, (2) contribution, and (3) declaratory relief against Cross-Defendant Roper. On February 27, 2018, Bulk Transportation added cross-defendant Ranger as a Roe Cross-Defendant.
Defendant J&R Fleet presents evidence it issued a deposition subpoena for personal appearance and production of documents and things (the “subpoena”) and notice of taking videotaped deposition of non-party witness and production of documents (the “deposition notice”) on non-party Juan A. Rodriguez (“Rodriguez”) on August 19, 2019. Declaration of David M. Phillips (“Phillips Decl.”) Exs. D, E. The subpoena and deposition notice were served on Rodriguez on August 28, 2019, by personal service, and the deposition was scheduled to occur on September 24, 2019. Id. Exs. D-F. Rodriguez did not appear for the scheduled deposition. Id. Ex. G.
Defendant J&R Fleet now moves to compel Rodriguez to appear for his deposition and to produce the identified documents. Non-party Rodriguez has not filed an opposition and does not respond to J&R Fleet’s arguments.
Code of Civil Procedure section 2020.010(a) allows a party to obtain discovery from a nonparty, including by oral deposition or a deposition for the production of business records and things. Code Civ. Proc. § 2020.010(a).) All subsequent statutory references will be to the Code of Civil Procedure, unless otherwise specified.
Pursuant to section 1987.1(a), “the court, upon motion reasonably made by any person described in subdivision (b), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.” Code Civ. Proc. § 1987.1(a). Section 1987.1(b)(1) allows a party to bring a motion under section 1987.1(a).
Defendant J&R Fleet moves to compel Rodriguez’s compliance with the deposition subpoena pursuant to section 2025.480(a). Because Rodriguez did not appear for the deposition, this motion should have been brought under section 1987.1 rather than section 2025.480—which applies if a deponent appears but fails to answer any question or produce any specified document.
A trial court may construe a motion bearing one label as a different type of motion. Austin v. Los Angeles Unified School Dist., 244 Cal. App. 4th 918, 930 (2016). “‘The nature of a motion is determined by the nature of the relief sought, not by the label attached to it. The law is not a mere game of words.… The principle that a trial court may consider a motion regardless of the label placed on it by a party is consistent with the court's inherent authority to manage and control its docket.’ [Citation.]” Id. As J&R Fleet has clearly identified the relief it seeks, the court will exercise its discretion to consider the subject motion as a motion to compel compliance with a deposition subpoena under section 1987.1.
J&R Fleet presents evidence it served a subpoena on Rodriguez ordering his appearance and production of documents. Phillips Decl. Ex. D. J&R Fleet contends this testimony is necessary because Rodriguez purchased the Subject Vehicle from Plaintiff after the incident and may have information as to the present location of certain equipment that was on the truck at the time of the incident. Mot. 3. J&R Fleet notes the Subject Vehicle was sold to Rodriguez before any Defendant in this action had the opportunity to inspect the truck or any of its equipment. Mot. 1; Phillips Decl. ¶ 7. Rodriguez did not file an opposition and does not respond to J&R Fleet’s arguments.
Based on the evidence presented, the court finds good cause exists to ORDER Rodriguez to comply with the deposition subpoena and to appear for a noticed deposition to occur within 30 days of this order, or on a date mutually agreed upon by J&R Fleet and Rodriguez, and to produce all requested documents.
II. Monetary Sanctions
Defendant J&R Fleet requests the court impose monetary sanctions under section 2020.240. Defendant did not request these sanctions in the notice of the motion, and the court, therefore, DENIES the request. See Blumenthal v. Superior Court, 103 Cal. App. 3d 317, 320 (1980) (recognizing an individual must be given proper notice that sanctions are being sought); see also Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group June 2020) Discovery Sanctions ¶ 8:2000 (the notice of motion requesting discovery sanctions must contain a request for sanctions that names all individuals against whom sanctions are being sought, specifying the type of sanction sought, the authority for such sanctions, and must be accompanied by a declaration “setting forth facts supporting” the amount of any monetary sanctions sought).
Case Number: BC639369 Hearing Date: July 21, 2020 Dept: 39
Edward Barba v. Bulk Transportation, et al., BC639369
Plaintiff Edward Barba's Motion to Compel Attendance at Deposition and Testimony of Person Most Knowledgeable from Roper Pump Company: the unopposed motion is GRANTED.
Defendant Roper Pump Company is ordered to produce a PMK for
deposition by August 31, 2020 (or on a mutually-agreed upon date). Plaintiff’s request for
monetary sanctions is DENIED for failure to comply with the notice requirements
of Code of Civil Procedure section 2023.040. Counsel for Plaintiff is to give notice.
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