This case was last updated from Los Angeles County Superior Courts on 08/14/2019 at 09:35:18 (UTC).

ROBERT PIONTKOWSKI VS VEIOLIA ES INDUSTRIAL SERVICES INC ET

Case Summary

On 10/11/2016 ROBERT PIONTKOWSKI filed a Personal Injury - Other Personal Injury lawsuit against VEIOLIA ES INDUSTRIAL SERVICES INC ET. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are PATRICIA D. NIETO and DEIRDRE HILL. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****6816

  • Filing Date:

    10/11/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

PATRICIA D. NIETO

DEIRDRE HILL

 

Party Details

Petitioner and Plaintiff

PIONTKOWSKI ROBERT

Defendants and Respondents

VEOLIA WATER TECHNOLOGIES INC.

VEOLIA NORTH AMERICA LLC

VEOLIA ES INDUSTRIAL SERVICES INC.

DOES 1 THROUGH 50

NOOTER CONSTRUCTION COMPANY DOE 3

FLOUR ENTERPRISES INC. DOE 5

NOOTER CORPORATION DOE 4

FLOUR CORPORATION DOE 6

AMEC FOSTER WHEELER USA CORP DOE 2

AMEC FOSTER WHEELER NORTH AMERICA CORP

Not Classified By Court

CHEVRON USA INC.

NON-PARTY CHEVRON USA INC.

Attorney/Law Firm Details

Petitioner and Plaintiff Attorneys

KIESEL PAUL R. ESQ.

WEXLER NOAH M.

KIESEL PAUL ROBERT ESQ.

BALSER CHRISTOPHER JAKE

Defendant and Respondent Attorneys

RODRIGUEZ-SHAPOVAL MARIA

RODRIGUEZ-SHAPOVAL MARISA ESQ.

ROBERTS D. LEE JR

HERZFELDT LORIN M.

ANDERSON ROBERT M

BERKES ROBERT

Not Classified By Court Attorney

ARBUCCI COURTNEY ROBINSON

 

Court Documents

Notice of Posting of Jury Fees

6/5/2019: Notice of Posting of Jury Fees

Notice of Motion

6/13/2019: Notice of Motion

Opposition

7/18/2019: Opposition

Declaration

7/25/2019: Declaration

Notice of Case Reassignment and Order for Plaintiff to Give Notice

8/14/2018: Notice of Case Reassignment and Order for Plaintiff to Give Notice

Order

11/2/2018: Order

Minute Order

11/2/2018: Minute Order

Declaration

4/5/2019: Declaration

Motion to Be Admitted Pro Hac Vice

5/2/2019: Motion to Be Admitted Pro Hac Vice

Declaration

5/7/2019: Declaration

Declaration

5/7/2019: Declaration

Notice

5/9/2019: Notice

Minute Order

5/10/2019: Minute Order

Proof of Service by Mail

5/28/2019: Proof of Service by Mail

Order

5/29/2019: Order

Notice of Ruling

5/29/2019: Notice of Ruling

Minute Order

5/30/2019: Minute Order

COMPLAINT FOR DAMAGES 1. NEGLIGENCE; ETC

10/11/2016: COMPLAINT FOR DAMAGES 1. NEGLIGENCE; ETC

114 More Documents Available

 

Docket Entries

  • 05/11/2020
  • Hearingat 08:30 AM in Department B at 825 Maple Ave., Torrance, CA 90503; Non-Appearance Case Review

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  • 02/04/2020
  • Hearingat 08:30 AM in Department B at 825 Maple Ave., Torrance, CA 90503; Jury Trial

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  • 01/28/2020
  • Hearingat 08:30 AM in Department B at 825 Maple Ave., Torrance, CA 90503; Final Status Conference

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  • 09/12/2019
  • Hearingat 08:30 AM in Department B at 825 Maple Ave., Torrance, CA 90503; Hearing on Motion to Seal (name extension)

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  • 09/12/2019
  • Hearingat 08:30 AM in Department B at 825 Maple Ave., Torrance, CA 90503; Case Management Conference

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  • 09/12/2019
  • Hearingat 08:30 AM in Department B at 825 Maple Ave., Torrance, CA 90503; Hearing on Motion to Seal (name extension)

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  • 09/12/2019
  • Hearingat 08:30 AM in Department B at 825 Maple Ave., Torrance, CA 90503; Hearing on Motion to Seal (name extension)

    Read MoreRead Less
  • 09/12/2019
  • Hearingat 08:30 AM in Department B at 825 Maple Ave., Torrance, CA 90503; Hearing on Motion to Seal (name extension)

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  • 08/12/2019
  • DocketJudgment (as to Veiolia ES); Filed by Veolia Es Industrial Services, Inc. (Defendant)

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  • 08/09/2019
  • DocketCase Management Statement; Filed by Robert Piontkowski (Plaintiff)

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219 More Docket Entries
  • 11/10/2016
  • DocketNOTICE OF ACKNOWLEDGEMENT OF RECEIPT - CIVIL

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  • 11/10/2016
  • DocketNotice (AND ACKNOWLEDGMENT OF RECEIPT- CIVIL ); Filed by Attorney for Plaintiff/Petitioner

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  • 11/10/2016
  • DocketNOTICE OF ACKNOWLEDGEMENT OF RECEIPT - CIVIL

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  • 11/10/2016
  • DocketNOTICE OF ACKNOWLEDGEMENT OF RECEIPT - CIVIL

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  • 10/11/2016
  • DocketComplaint filed-Summons Issued; Filed by null

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  • 10/11/2016
  • DocketSUMMONS

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  • 10/11/2016
  • DocketComplaint; Filed by Robert Piontkowski (Plaintiff); ROBERT POINTKOWSKI (Plaintiff)

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  • 10/11/2016
  • DocketSummons; Filed by null

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  • 10/11/2016
  • DocketCOMPLAINT FOR DAMAGES 1. NEGLIGENCE; ETC

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  • 10/11/2016
  • DocketComplaint

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Tentative Rulings

Case Number: BC636816    Hearing Date: May 11, 2021    Dept: M

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

ROBERT PIONTKOWSKI,

Plaintiff,

Case No.:

BC636816

vs.

[Tentative] RULING

VEIOLIA ES INDUSTRIAL SERVICES, INC., et al.,

Defendants.

Hearing Date: May 11, 2021

Moving Parties: Non-party Chevron USA, Inc.

Responding Party: None

(1) Motion of Non-Party Chevron USA, Inc. to Seal Documents Lodged with the Court in Support of Fluor Enterprises, Inc.’s Reply to Plaintiff’s Opposition to its Motion for Summary Judgment

(2) Motion of Non-Party Chevron USA, Inc. to Seal Documents Lodged with the Court in Support of Plaintiff’s Response to Fluor Enterprises, Inc.’s Motion for Summary Judgment

The court considered the moving papers.

RULING

The motions are GRANTED. The court ORDERS that the following documents be filed and sealed:

(1) Fluor Enterprises, Inc.’s Reply to Plaintiff’s Opposition to its Motion for Summary Judgment

(2) Fluro Enterprises, Inc.’s Reply to Plaintiff’s Response to Fluor’s Separate Statement of Undisputed Material Facts in Support of Fluor’s Motion for Summary Judgment

(3) Declaration of Ryan Kujawski in support of Fluor’s Motion for Summary Judgment

(4) Fluor’s Objections to Plaintiff’s Evidence Submitted in Opposition to Fluor’s Motion for Summary Judgment.

(5) Lodged plaintiff’s response to Fluor’s notice of motion and motion for summary judgment;

(6) Lodged plaintiff’s response to Fluor’s Separate Statement of Undisputed Material Facts;

(7) Lodged declaration of Ben Birely, Esq. filed in support of plaintiff’s response to MSJ, with supporting exhibits and declarations;

(8) Plaintiff’s response to Fluor’s notice of motion and motion for summary judgment, which was electronically filed and contains unredacted confidential information;

(9) Declaration of Ben Birely, Esq. electronically filed in response to Fluor’s motion for summary judgment, which contains unredacted confidential information, with supporting exhibits and declarations.

At this time, no other records relating to this case are to be sealed. No person other than the court is authorized to inspect the sealed records. CRC Rule 2.551(e)(2), (3).

The court directs the court clerk to comply with the requirements and procedures set forth in CRC Rule 2.551(e) and (f) with respect to the records the court has ordered to be filed under seal.

BACKGROUND

On October 11, 2016, Robert Piontkowski filed a complaint against Veolia Industrial Services, Inc., Veolia North America, LLC, and Veolia Water Technologies, Inc. for negligence and gross negligence. Plaintiff alleges that on June 1, 2016, he was working at the Chevron refinery in El Segundo. He was performing his assigned job task and was required to drain a line at the worksite. However, the line was plugged and would not properly drain. In the process of performing this assigned task, scalding coke and other materials were violently released from the plugged line causing plaintiff to sustain serious burns and other injuries. Defendants were responsible for maintaining and clearing the lines at the refinery, including the one at issue. Defendants were sent a work order to clear out the line in question prior to the incident but failed to do so. As a result of defendants’ negligence, plaintiff sustained serious and permanent injuries and damages.

LEGAL AUTHORITY

California Rules of Court (“CRC”), Rule 2.550(c) states: “Unless confidentiality is required by law, court records are presumed to be open.” But a party may move to seal records pursuant to Rules 2.550-2.551. CRC Rule 2.551(b)(1) states: “A party requesting that a record be filed under seal must file a motion or an application for an order sealing the record. The motion or application must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing.” CRC Rule 2.550(d) states: “The court may order that a record be filed under seal only if it expressly finds facts that establish:

(1) There exists an overriding interest that overcomes the right of public access to the record;

(2) The overriding interest supports sealing the record;

(3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;

(4) The proposed sealing is narrowly tailored; and

(5) No less restrictive means exist to achieve the overriding interest.”

DISCUSSION

Non-party Chevron USA, Inc. requests that the court seal the following lodged documents:

(1) Fluor Enterprises, Inc.’s Reply to Plaintiff’s Opposition to its Motion for Summary Judgment;

(2) Fluro Enterprises, Inc.’s Reply to Plaintiff’s Response to Fluor’s Separate Statement of Undisputed Material Facts in Support of Fluor’s Motion for Summary Judgment;

(3) Declaration of Ryan Kujawski in support of Fluor’s Motion for Summary Judgment;

(4) Fluor’s Objections to Plaintiff’s Evidence Submitted in Opposition to Fluor’s Motion for Summary Judgment;

(5) Lodged plaintiff’s response to Fluor’s notice of motion and motion for summary judgment;

(6) Lodged plaintiff’s response to Fluor’s Separate Statement of Undisputed Material Facts;

(7) Lodged declaration of Ben Birely, Esq. filed in support of plaintiff’s response to MSJ, with supporting exhibits and declarations;

(8) Plaintiff’s response to Fluor’s notice of motion and motion for summary judgment, which was electronically filed and contains unredacted confidential information;

(9) Declaration of Ben Birely, Esq. electronically filed in response to Fluor’s motion for summary judgment, which contains unredacted confidential information, with supporting exhibits and declarations.

On November 16, 2018, the parties to this action and non-party Chevron entered into a stipulated Protective Order as to Confidential Documents that would be produced by Chevron. In September 2019, the parties entered into a new Protective Order as to Confidential Documents to include newly added parties, filed as an order on September 10, 2019.

The above referenced documents contain redactions of information that the parties and Chevron have deemed confidential in accordance with the Protective Order.

The court makes the following findings of facts that establish the requirements set forth in CRC Rule 2.550(d):

(1) There exists an overriding interest in protecting disclosure of non-party Chevron’s commercially sensitive and proprietary information. Chevron contends that the documents referenced above contain, summarize, and refer to Chevron’s trade secrets and proprietary information, specifically descriptions of a specific coker unit at Chevron’s El Segundo oil refinery and coking process.

(2) The overriding interest of protecting Chevron supports sealing the records because such information is commercially sensitive and proprietary.

(3) A substantial probability exists that the overriding interest of protecting Chevron’s confidential and proprietary information will be prejudiced if the records are not sealed. As Chevron asserts, it is a trailblazer in its refinery procedure and disclosure of the information as to the processes it has created would impact its competitive ability in the market.

(4) The proposed sealing is narrowly tailored to only include the documents referenced above.

(5) No less restrictive means exist to achieve the overriding interest because of the nature of the records to be sealed.

Chevron’s motions are therefore GRANTED.

Chevron is ordered to give notice.

Case Number: BC636816    Hearing Date: December 03, 2020    Dept: M

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

ROBERT PIONTKOWSKI.,

Plaintiff,

Case No.:

BC636816

vs.

[Tentative] RULING

VEIOLIA ES INDUSTRIAL SERVICES, INC. et al.,

Defendants.

Hearing Date: December 3, 2020

Moving Parties: Defendant Fluor Enterprises, Inc. (DOE 5)

Responding Party: Plaintiff Robert Piontkowski

Motion for Summary Judgment, or in the alternative, Summary Adjudication

The court considered the moving, opposition, and reply papers.

RULING

The motion for summary judgment is GRANTED. The motion for summary adjudication is MOOT.

BACKGROUND

On October 11, 2016, Robert Piontkowski filed a complaint against Veolia Industrial Services, Inc., Veolia North America, LLC, and Veolia Water Technologies, Inc. for negligence and gross negligence.

On August 1, 2017, the court approved the stipulation for protective order regarding confidential information.

On June 1, 2018, plaintiff filed a First Amended Complaint (“FAC”) for (1) negligence, (2) gross negligence, (3) design defect, (4) manufacturing defect, (5) marketing defect, and (6) breach of implied warranties. Plaintiff added Fluor Enterprises, Inc. (“FEI”), among others, as Doe defendants.

LEGAL AUTHORITY

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843. “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Adler v. Manor Healthcare Corp. (1992) 7 Cal. App. 4th 1110, 1119.

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1519. A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” CCP § 437c(p)(2). “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” CCP § 437c(p)(2). “If the plaintiff cannot do so, summary judgment should be granted.” Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467.

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” Avivi, 159 Cal. App. 4th at 467; CCP §437c(c). “’An issue of fact can only be created by a conflict in the evidence. It is not created by speculation, conjecture, imagination or guesswork.’” Lyons v. Security Pacific National Bank (1995) 40 Cal. App. 4th 1001, 1014 (citation omitted).

DISCUSSION

FEI requests summary judgment in its favor and against plaintiff as to the FAC on the grounds that there are no triable issues of material fact and it is entitled to judgment as a matter of law.

Alternatively, FEI requests summary adjudication as to the following issues:

Issue No. 1: Plaintiff’s First Cause of Action for Negligence against FEI fails because plaintiff cannot establish the required elements of this claim.

Issue No. 2: Plaintiff’s Second Cause of Action against FEI fails because Gross Negligence is not an independent cause of action.

Issue No. 3: Plaintiff’s Third Cause of Action against FEI fails because FEI did not design the product alleged to be defective.

Issue No. 4: Plaintiff’s Fourth Cause of Action against FEI fails because FEI did not manufacture the product alleged to be defective.

Issue No. 5: Plaintiff’s Fifth Cause of Action against FEI fails because FEI did not market the product alleged to be defective.

Issue No. 6: Plaintiff’s Sixth Cause of Action for Breach of Implied Warranty against FEI fails because plaintiff cannot establish the required elements of this claim.

In the FAC, plaintiff alleges that on June 1, 2016, he was working at the Chevron refinery in El Segundo. On the date in question, he was performing his assigned job task and was required to drain a line on a Coker Unit at the worksite. However, the line was plugged and would not properly drain. In the process of performing this assigned task, scalding coke and other materials were violently released from the plugged line causing plaintiff to sustain serious burns and other injuries. FAC, ¶29. The Coker Unit was defective, which led to repeated plugging of drain lines on the Coker Unit, including the plugged drain line that caused plaintiff’s injuries. Id., ¶30.

On May 2, 2029, plaintiff filed an amendment designating FEI as Doe 5. Per the FAC, FEI, as a doe defendant, was responsible for designing, manufacturing, constructing, and/or marketing the defective Coker Unit. Id., ¶2. Additionally, plaintiff’s Responses to Interrogatories allege that FEI was obligated to properly install the coker drums but failed to do so, which was the proximate cause of plaintiff’s injuries.

A. Procedural Issues (Opposition)

FEI argues that plaintiff’s opposition is procedurally defective: (1) plaintiff fails to include a separate statement for additional facts; (2) plaintiff fails to provide proper citation to supporting deposition testimony; and (3) plaintiff fails to highlight relevant portion of any testimony. FEI argues that these defects are sufficient to disregard plaintiff’s opposition and grant FEI’s motion.

California Rules of Court, rule 3.1350(f) states, “If the opposing party contends that additional material facts are pertinent to the disposition of the motion, those facts must be set forth in the separate statement. The separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion. Each fact must be followed by the evidence that establishes the fact. Citation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers.” The court, in its discretion, may grant a motion for a party’s failure to comply with this requirement. CCP § 437c(b)(3).

California Rules of Court, rule 3.1116(b) states, “Other than the title page, the exhibit must contain only the relevant pages of the transcript. The original page number of any deposition page must be clearly visible. California Rules of Court, rule 3.1116(c) states, “The relevant portion of any testimony in the deposition must be marked in a manner that calls attention to the testimony.”

The court does not find any procedural defect to be fatal. To the extent plaintiff has introduced additional facts, it appears that those facts are used to dispute the facts presented by FEI in its motion. Additionally, though plaintiff could have been more specific with citing to and highlighting supporting testimony, plaintiff’s identification of such testimony is sufficient for the court to understand how plaintiff is using the testimony. To the extent that the court does not understand, it disregards the evidence.

The court exercises its discretion to review and consider the merits of the opposition.

B. Objections

In support of his opposition, plaintiff filed the Declaration of Gregg S. Perkins and the

Declaration of Ben Bireley. FEI objects to both declarations. The court rules as follows:

1. Declaration of Gregg S. Perkins

The court sustains all objections. Safeway Wage & Hour Cases

2. Declaration of Ben Bireley

The court overrules all objections. Evid. Code § 1292(a)(3) (“The issue is such that the party to the action or proceeding in which the former testimony was given had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which the party against whom the testimony is offered has at the hearing.”).

C. Analysis

FEI moves for summary judgment, or in alternative, summary adjudication as to all six causes of action of the FAC.

1. Negligence (First Cause of Action)

FEI argues that there is no evidence it owed plaintiff a legal duty, and even if it did, there is no evidence that FEI caused or contributed in any way to plaintiff’s injuries. FEI does so on grounds that FEI’s involvement with the coker unit is limited to its construction management and oversight of Chevron for the 2011 Project.

"The elements of a cause of action for negligence are well established: "(a) a legal duty to

use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury." Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.

i. Duty

Generally, “each person has a duty to use ordinary care and “is liable for injuries caused by his failure to exercise reasonable care in the circumstances.Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472 (citations and internal quotations omitted). Several factors are used to determine “the existence and scope of a duty of care in a given case to assist in determining the existence and scope of a duty of care in a given case: the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.” Doe v. Superior Court (2015) 237 Cal.App.4th 239, 245 (citations and internal quotations omitted).

The following, among other pieces of evidence, support FEI’s argument that it has no duty:

The initial coke drums were installed in 1968 by Foster Wheels. Bellow Decl., Exh. I, ¶ 8. Sometime thereafter, Chevron installed Delta valves at the bottom of each coke drum. Bellow Decl., Exh. E, 189:18-190:5. FEI was not involved in the original or subsequent installations. Bellow Decl., Exh. J, ¶ 7.

FEI and Chevron entered into a contract whereby FEI’s work involved project and construction management of the removal and replacement of all six coker drums. Bellow Decl., Exh. J, ¶6. Pursuant to the contract, FEI did not remove or install coker drums; rather, that work was done by Chevron’s contractors or employees. Bellow Decl., Exh. J, ¶¶ 7-9. Additionally, FEI did not market, sell, advertise, install, remove, or manufacture any of the coker drums, delta valves, or associated drain lines of the coke drums. Id. at ¶ 10.

Chevron, plaintiff’s employer, conducted an independent study on the incident that caused plaintiff’s injuries. Chevron identified three causal factors: (1) “drain line has been plugging periodically, prompting drains through bottom Delta Valve;” (2) “Current practices, including the installation of the locking pin, require the Structure Operator to proceed to the 23’ deck after the bottom Delta Valve is opened and risk of coke fall-out becomes present;” and (3) “Existing gap in the chute under the bottom Delta Valve can allow hot coke and water to release onto the deck.” Bellow Decl., Exh. B. Chevron took ownership of and began remedying these factors. Bellow Decl., Exh. B and C. The problems found by Chevron had nothing to do with FEI’s role in the 2014 coker drum replacement, and FEI had no role in the operations at Chevron. Bellow Decl., Exh. B; Exh. C.; Exh. E, pgs. 92-193; Exh. J, ¶¶ 11, 13-14; Exh. K, ¶ 8.

Plaintiff testified that he was not aware of any work that FEI had performed at the Chevron refinery related to the coker unit prior to the incident that caused his injury. Bellow Decl., Exh. H, 51:10-13. He also testified that there have been no discussions at Chevron with regards to what role, if any, Fluor played in relation to the coker before plaintiff’s accident, and that he had not seen anybody for Fluor working at the coker unit before his accident. Id. at pg. 53. Plaintiff also testified that he has no personal knowledge as to whether Fluor company did anything with respect to the coker units which may have contributed to his accident. Id. at pgs. 58-59.

Based on the above evidence, FEI was not involved with any event that allegedly was a contributing cause of the subject incident, and plaintiff’s harm is not attributable to FEI’s acts or omissions. Using the factors detailed above, the evidence does not establish a duty on FEI to plaintiff.

FEI has satisfied its burden. As such, the burden shifts to plaintiff to show there is a triable issue of fact.

Plaintiff contends FEI has a duty to him because of its contract with Chevron. Seo v. All-Makes Overhead Doors

The following, among other pieces of evidence, support plaintiff’s argument that FEI owed him a duty:

The contract states that FEI is to perform front end engineering and design and prepare a Materials Management plan to manage the storage and integrity of the coker drums. Bireley Decl., Exh. O, ¶ 3.2. FEI was also responsible for confirming that all materials were in good condition until delivery to the care, custody and construction contractor. Id. at ¶ 3.3A. FEI also assumed responsibility for the work of the subcontractors approved by Chevron. Id. at ¶ 3.16. FEI’s use of approved subcontractors does not relieve FEI of any liability or obligation FEI was to perform under the contract. Id. at ¶ 16.3.

These provisions have the effect of showing that FEI had a role in designing and installing

the coker drums and was responsible for the subcontractor’s work.

However, the scope of the contract does not extend to the causal factors that led to the incident that caused plaintiff’s injuries – the drain line, installation of the lock pin, and the gap in the chute. Bireley Decl., Exh. Q, pg. 7. “The overall scope of this project involves the complete removal of the Cutting Deck and Derrick structure in one lift, and the replacement of all six Coke Drums through the top of the exist Coke Drum structure.” Id. at Exh. A-1. FEI did not touch any drain lines. Rujawski Decl., Exh. 3, pg. 37. The delta valve was outside the scope of work. Id. at pg. 51. The scope of the contract did not call for operations of the coker units after construction was completed, the redesign of any drain lines, or any work to the platform for the flooring of the 23’ deck. Id. at pgs. 73-74.

Additionally, the contract states, “[u]nless otherwise expressly provided herein (for example, indemnitees, indemnification and insurance rights), nothing in this Contract is intended to benefit any person or entity that is not a party to this Contract.” Bireley Decl., Exh. O, ¶ 30.1. Plaintiff has not shown it qualifies as a third-party beneficiary under the contract.

Plaintiff has failed to satisfy his burden in creating a triable issue, as he has not provided evidence to show that FEI, among other things, advertised, developed, distributed, inspected, labeled, or manufactured the coker unit in such a way that caused plaintiff’s injuries. FAC, ¶ 2.

ii. Causation

“To establish causation, a plaintiff must prove that the defendant’s conduct was a ‘substantial factor’ in bringing about his or her harm. Stated differently, evidence of causation ‘must rise to the level of a reasonable probability based upon competent testimony. A possible cause only becomes “probable” when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action.’” Bowman v. Wyatt (2010) 186 Cal. App. 4th 286, 312 (citations and internal quotations omitted).

For the reasons discussed in the duty section, plaintiff has not shown a reasonable probability that his harm stemmed from FEI’s actions or omissions.

2. Gross Negligence (Second Cause of Action)

FEI argues that this claim fails because plaintiff has not pled a statutory basis for the claim as

required.

“Numerous California cases have discussed the doctrine of gross negligence. Invariably these

cases have turned upon an interpretation of a statute which has used the words ‘gross negligence’ in the text.” Continental Ins. Co. v. American Protection Industries (1987) 197 Cal. App. 3d 322, 329. The other exception where a plaintiff may plead gross negligence is in the context of “waiver of liability for future negligence.” In those cases, “courts have held that conduct that substantially or unreasonably increased the inherent risk of an activity or actively concealed a known risk could amount to gross negligence, which would not be barred by a release agreement.” Anderson v. Fitness Internat., LLC (2016) 4 Cal. App. 5th 867, 881.

Under this cause of action, plaintiff alleges the same facts as those in the first cause of action for negligence. FAC, ¶¶ 33-39. Plaintiff does not allege a statutory basis in either cause of action. Ibid. In opposition, plaintiff has not alleged a statutory basis either. As such, plaintiff has not shown that he can meet the elements of gross negligence.

3. Design Defect (Third Cause of Action); Manufacturing Defect (Fourth Cause of Action)

FEI argues that plaintiff’s claims fail because plaintiff cannot establish that FEI was

responsible for any design or manufacturing defect.

For the reasons discussed in the duty section, FEI has shown it did not design or manufacture the coker units, at least in a way that caused plaintiff’s injuries. Nelson v. Superior Court (2006) 144 Cal.App.4th 689, 695 (“The elements of a strict products liability cause of action are a defect in the manufacture or design of the product or failure to warn, causation, and injury.”).

Plaintiff does not address FEI’s arguments in opposition. As such, he has not met his burden in showing there is a triable issue of fact.

4. Marketing Defect (Fifth Cause of Action)

FEI argues that plaintiff’s claim fails because plaintiff cannot establish that FEI was

responsible for any marketing defect.

For the reasons discussed in the duty section, FEI has shown it did not market the coker units.

Plaintiff does not address FEI’s argument in opposition. As such, he has not met his burden in showing there is a triable issue of fact.

5. Breach of Implied Warranties (Sixth Cause of Action)

FEI argues that plaintiff’s claim fails because plaintiff cannot establish that FEI was

involved in any way with the original installation of the coker units in 1968 or with the subsequent installation of Delta Valves at the subject coker unit.

"An implied warranty of fitness for a particular purpose arises only where (1) the purchaser at the time of contracting intends to use the goods for a particular purpose, (2) the seller at the time of contracting has reason to know of this particular purpose, (3) the buyer relies on the seller's skill or judgment to select or furnish goods suitable for the particular purpose, and (4) the seller at the time of contracting has reason to know that the buyer is relying on such skill and judgment." Keith v. Buchanan (1985) 173 Cal.App.3d 13, 25; see also CACI No. 3211. Privity is generally required for an implied warranty claim. See Burr v. Sherwin Williams Co. (1954) 42 Cal2d 682, 695 (vertical privity is a prerequisite in California for recovery on a theory of breach of the implied warranty of fitness, unless an exception applies.).

As discussed in the duty section, FEI has shown that it was not involved in any way with the original installation of the coker units in 1968 or with the subsequent installation of Delta Valves at the subject coker unit. Additionally, plaintiff’s claim is premised on the allegation that FEI designed, manufacture, and/or marketed the subject Coker Unit. FAC, ¶ 72. As stated above, those causes of action fail.

Plaintiff does not address FEI’s arguments in opposition. As such, he has not met his burden in showing there is a triable issue of fact.

6. Punitive Damages

In opposition, plaintiff seeks punitive damages. However, plaintiff does not seek punitive damages in his complaint. FAC, pg. 12; See County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 332 (the court is required to determine a motion for summary judgment using the complaint as a “frame” and should not consider issues outside of the Complaint.).

Case Number: BC636816    Hearing Date: October 29, 2020    Dept: M

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

ROBERT PIONTKOWSKI,

Plaintiff,

Case No.:

BC636816

vs.

[Tentative] RULING

VEOLIA ES INDUSTRIAL SERVICES, INC., et al.,

Defendants.

Hearing Date: October 29, 2020

Moving Parties: Defendant Fluor Corporation

Responding Party: None

Motion for Summary Judgment or, alternatively, for Summary Adjudication

The court considered the moving papers.

RULING

The motion for summary judgment is GRANTED. The motion for summary adjudication is MOOT.

BACKGROUND

On October 11, 2016, Robert Piontkowski filed a complaint against Veolia Industrial Services, Inc., Veolia North America, LLC, and Veolia Water Technologies, Inc. for negligence and gross negligence.

On August 1, 2017, the court approved the stipulation for protective order regarding confidential information.

On June 1, 2018, plaintiff filed a First Amended Complaint for (1) negligence, (2) gross negligence, (3) design defect, (4) manufacturing defect, (5) marketing defect, and (6) breach of implied warranties. Plaintiff added AMEC Foster Wheeler North America Corp., AMEC Foster Wheeler USA Corporation, Nooter Construction Company, and Nooter Corporation as Doe defendants.

LEGAL AUTHORITY

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843. “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Adler v. Manor Healthcare Corp. (1992) 7 Cal. App. 4th 1110, 1119.

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1519. A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” CCP § 437c(p)(2). “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” CCP § 437c(p)(2). “If the plaintiff cannot do so, summary judgment should be granted.” Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467.

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” Avivi, 159 Cal. App. 4th at 467; CCP §437c(c).

DISCUSSION

Defendant Fluor Corporation requests summary judgment against plaintiff on the ground there are no triable issues of material facts and, as a matter of law, it is entitled to judgment in its favor. In the alternative, defendant seeks summary adjudication as to each cause of action as follows:

Issue No. 1: The complaint against Fluor Corp. fails because there is no evidence that Fluor is a signatory to any contract for work performed on the coker unit.

Issue No. 2: The complaint against Fluor Corp. fails as there is no evidence that Fluor designed, marketed, constructed, or sold the coker unit at issue or any of its component parts.

Issue No. 3: Plaintiff’s 1st cause of action for negligence fails because plaintiff cannot establish the required elements of this claim.

Issue No. 4: Plaintiff’s 2nd cause of action fails because gross negligence is not an independent cause of action.

Issue No. 5: Plaintiff’s 3rd cause of action fails because Fluor did not design the product alleged to be defective.

Issue No. 6: Plaintiff’s 4th cause of action fails because Fluor did not manufacture the product alleged to be defective.

Issue No. 7: Plaintiff’s 5th cause of action fails because Fluor did not market the product alleged to be defective.

Issue No. 8: Plaintiff’s 6th cause of action for breach of implied warranty fails because plaintiff cannot establish the required elements of this claim.

In the First Amended Complaint, plaintiff alleges that on June 1, 2016, he was working at the Chevron refinery in El Segundo. On the date in question, he was performing his assigned job task and was required to drain a line on a Coker Unit at the worksite. However, the line was plugged and would not properly drain. In the process of performing this assigned task, scalding coke and other materials were violently released from the plugged line causing plaintiff to sustain serious burns and other injuries. FAC, ¶29. The Coker Unit was defective, which led to repeated plugging of drain lines on the Coker Unit, including the plugged drain line that caused plaintiff’s injuries. Id., ¶30.

On May 2, 2029, plaintiff filed an amendment designating Fluor Corporation as Doe 6. As a Doe defendant, the FAC alleges that Fluor was responsible for designing, manufacturing, constructing, and/or marketing the defective Coker unit. The FAC also alleges that Fluor was responsible for maintaining and clearing the lines at the refinery, including the one at issue.

In response to discovery, plaintiff asserts that Fluor was obligated to properly install the coke drums but failed to so which was the proximate cause of plaintiff’s injuries. Defendant contends that plaintiff did not identify any specific documents to support his allegations against Fluor. In his deposition, plaintiff testified that he was not aware of any work that Fluor performed at the Chevron Refinery related to the Coke unit prior to the incident that caused his injury. He testified that as far as he was aware, no one at Chevron blamed Fluor for anything that caused the accident. Plaintiff was aware that there was a replacement of the coke drums in 2014 but testified that there was no difference in the 23’ deck before and after the coke drum replacement. Fluor presents evidence that in 1968, Foster Wheeler Corp. designed the coke drums (and feeder/drain lines) for the original Coker unit installed by then owner Standard Oil Co. (now known as Chevron USA). Fluor had no connection to the events or equipment at issue in the matter. Fluor was not part of the original design or construction of the original coker unit and was not involved in any subsequent construction or revisions to the coker unit.

Fluor also presents evidence that as to the contract for work related to the coke drum, it was not a signatory and did not perform any work at the refinery related to the project. Chevron and the entity “Fluor Enterprises, Inc.” were the only signatories to the contract for the coker drum replacement. Fluor Corp. is a wholly separate entity from “Fluor Enterprises, Inc.” See Rebecca Bellow decl., and exhibits.

1st cause of action for negligence

Defendant argues that there is no evidence that Fluor Corp. owed a legal duty to plaintiff or that it caused or contributed in any way to the incident at issue. It was not a signatory to the contract for work and it did not participate in the original design or construction of the coker unit.

“To establish causation, a plaintiff must prove that the defendant’s conduct was a ‘substantial factor’ in bringing about his or her harm. Stated differently, evidence of causation ‘must rise to the level of a reasonable probability based upon competent testimony. A possible cause only becomes “probable” when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action.’” Bowman v. Wyatt (2010) 186 Cal. App. 4th 286, 312 (citations and internal quotations omitted).

The court finds that defendant has met its burden of showing that plaintiff cannot establish the elements of duty and causation.

2nd cause of action for gross negligence

Defendant argues that this claim fails because gross negligence is not an independent cause of action.

“Numerous California cases have discussed the doctrine of gross negligence. Invariably these cases have turned upon an interpretation of a statute which has used the words ‘gross negligence’ in the text.” Continental Ins. Co. v. American Protection Industries (1987) 197 Cal. App. 3d 322, 329. The other exception where a plaintiff may plead gross negligence is in the context of “waiver of liability for future negligence.” In those cases, “courts have held that conduct that substantially or unreasonably increased the inherent risk of an activity or actively concealed a known risk could amount to gross negligence, which would not be barred by a release agreement.” Anderson v. Fitness Internat., LLC (2016) 4 Cal. App. 5th 867, 881.

Under this cause of action, plaintiff alleges the same as under the 1st cause of action.

Defendant has shown that plaintiff cannot establish the elements of gross negligence.

3rd cause of action for design defect

In the FAC, plaintiff alleges that defendants’ Coker Unit was not reasonably safe for its intended uses and was defectively designed. FAC, ¶42. Defendants manufactured, marketed, promoted, distributed, and sold the Coker Unit in the stream of commerce despite the design defects that defendants knew or should have known. Id., ¶43. The Coker Unit was defectively designed when compared to safer alternative designs for coker units. Workers who use defendants’ Coker Unit are exposed to a number of dangerous defects, which include repeated plugging or clogging of drain lines. Id., ¶44. Prior to the manufacture, sale, and distribution of the Coker Unit, defendants knew or should have know that the Coker Unit was defectively designed. Id., ¶46. The Coker Unit was used for the intended purpose and the dangerous defects could not have been discovered through the exercise of due care. Id., ¶47.

Defendant has met its burden of showing that plaintiff cannot establish the element that defendant designed the product at issue.

4th cause of action for manufacturing defect

Defendant has met its burden to show that plaintiff cannot establish the elements of this cause of action because the evidence indicates that defendant did not manufacture any aspect of the Coker unit or its drain lines and thus, defendant did not have a duty to warn of any inherent hazard that may have existed in the Coker unit.

5th cause of action for marketing defect

Plaintiff alleges that the Coker unit was not reasonable safe for its intended uses and was defectively marketed.

“’Generally speaking, manufacturers have a duty to warn consumers about the hazards inherent in their products.’” O’Neill v. Crane Co. (2012) 53 Cal. 4th 335, 351 (citation omitted). As stated above, defendant has shown that it did not manufacture the Coker unit.

The court finds that defendant has met its burden of showing that plaintiff cannot meet the elements for this cause of action.

6th cause of action for breach of implied warranty

“An implied warranty of fitness for a particular purpose arises only where (1) the purchaser at the time of contracting intends to use the goods for a particular purpose, (2) the seller at the time of contracting has reason to know of this particular purpose, (3) the buyer relies on the seller’s skill or judgment to select or furnish goods suitable for the particular purpose, and (4) the seller at the time of contracting has reason to know that the buyer is relying on such skill and judgment.” Keith v. Buchanan (1985) 173 Cal. App. 3d 13, 25 (citation omitted); see also CACI 3211. Vertical privity is a prerequisite in California for recovery on a theory of breach of the implied warranty of fitness, unless an exception applies.

As stated above, Fluor shows that it was not involved with nor did it participate in any way with the 1968 design of the subject Coker unit or otherwise with any other project related to the Coker uni.

The court finds that defendant has met its burden of showing that plaintiff cannot establish the elements for breach of implied warranty. The claim is premised on the allegation that Fluor designed, manufactured, and/or marketed the subject Coker unit. As stated above, there is no evidence of such.

There is no opposition. Thus, plaintiff has not met his burden of presenting substantial evidence to raise a triable issue of material fact.

The motion for summary judgment is therefore GRANTED. The motion for summary adjudication is MOOT in light of the ruling on the motion for summary judgment.

Moving defendant is ordered to give notice of the ruling.

Case Number: BC636816    Hearing Date: July 20, 2020    Dept: M

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

ROBERT PIONTKOWSKI,

Plaintiff,

Case No.:

BC636816

vs.

[Tentative] RULING

VEIOLIA ES INDUSTRIAL SERVICES, INC., et al.,

Defendants.

Hearing Date: July 21, 2020

Moving Parties: Non-party Chevron USA, Inc.

Responding Party: None

(1) Motion of Non-Party Chevron USA, Inc. to Seal Documents Lodged with the Court in Support of Plaintiff’s Supplemental Response AMEC Defendants’ Motion for Summary Judgment or, in the Alternative, Summary Adjudication of Issues

(2) Motion of Non-Party Chevron USA, Inc. to Seal Documents Lodged with the Court in Support of the AMEC Defendants’ Supplemental Reply to Plaintiff’s Supplemental Opposition to AMEC Defendants’ Motion for Summary Judgment or, in the Alternative, Summary Adjudication of Issues

The court considered the moving papers.

RULING

The motions are GRANTED. The court ORDERS that the following documents be filed and sealed:

(1) Plaintiff’s unredacted Supplemental Response to AMEC Defendants’ Motion for Summary Judgment or, in the Alternative, Summary Adjudication of Issues;

(2) Unredacted declaration of Jake Balser, Esq. in support of plaintiff’s Supplemental Response, including Exhs. A-F;

(3) Defendants’ Supplemental Reply to Plaintiff’s Supplemental Opposition to AMEC Defendants’ Motion for Summary Judgment or, in the Alternative, Summary Adjudication of Issues

At this time, no other records relating to this case are to be sealed. No person other than the court is authorized to inspect the sealed records. CRC Rule 2.551(e)(2), (3).

The court directs the court clerk to comply with the requirements and procedures set forth in CRC Rule 2.551(e) and (f) with respect to the records the court has ordered to be filed under seal.

BACKGROUND

On October 11, 2016, Robert Piontkowski filed a complaint against Veolia Industrial Services, Inc., Veolia North America, LLC, and Veolia Water Technologies, Inc. for negligence and gross negligence. Plaintiff alleges that on June 1, 2016, he was working at the Chevron refinery in El Segundo. He was performing his assigned job task and was required to drain a line at the worksite. However, the line was plugged and would not properly drain. In the process of performing this assigned task, scalding coke and other materials were violently released from the plugged line causing plaintiff to sustain serious burns and other injuries. Defendants were responsible for maintaining and clearing the lines at the refinery, including the one at issue. Defendants were sent a work order to clear out the line in question prior to the incident but failed to do so. As a result of defendants’ negligence, plaintiff sustained serious and permanent injuries and damages.

LEGAL AUTHORITY

California Rules of Court (“CRC”), Rule 2.550(c) states: “Unless confidentiality is required by law, court records are presumed to be open.” But a party may move to seal records pursuant to Rules 2.550-2.551. CRC Rule 2.551(b)(1) states: “A party requesting that a record be filed under seal must file a motion or an application for an order sealing the record. The motion or application must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing.” CRC Rule 2.550(d) states: “The court may order that a record be filed under seal only if it expressly finds facts that establish:

(1) There exists an overriding interest that overcomes the right of public access to the record;

(2) The overriding interest supports sealing the record;

(3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;

(4) The proposed sealing is narrowly tailored; and

(5) No less restrictive means exist to achieve the overriding interest.”

DISCUSSION

Non-party Chevron USA, Inc. requests that the court seal the following lodged documents:

(1) Plaintiff’s unredacted Supplemental Response to AMEC Defendants’ Motion for Summary Judgment or, in the Alternative, Summary Adjudication of Issues;

(2) Unredacted declaration of Jake Balser, Esq. in support of plaintiff’s Supplemental Response, including Exhs. A-F; and

(3) Unredacted AMEC Defendants’ Supplemental Reply to Plaintiff’s Supplemental Opposition to defendants’ Motion for Summary Judgment or, in the Alternative, Summary Adjudication of Issues.

On November 16, 2018, the parties to this action and non-party Chevron entered into a stipulated Protective Order as to Confidential Documents that would be produced by Chevron. In September 2019, the parties entered into a new Protective Order as to Confidential Documents to include newly added parties, filed as an order on September 10, 2019.

The above referenced documents contain redactions of information that the parties and Chevron have deemed confidential in accordance with the Protective Order.

The court makes the following findings of facts that establish the requirements set forth in CRC Rule 2.550(d):

(1) There exists an overriding interest in protecting disclosure of non-party Chevron’s commercially sensitive and proprietary information. Chevron contends that the documents referenced above contain, summarize, and refer to Chevron’s trade secrets and proprietary information, specifically descriptions of a specific coker unit at Chevron’s El Segundo oil refinery and coking process.

(2) The overriding interest of protecting Chevron supports sealing the records because such information is commercially sensitive and proprietary.

(3) A substantial probability exists that the overriding interest of protecting Chevron’s confidential and proprietary information will be prejudiced if the records are not sealed. As Chevron asserts, it is a trailblazer in its refinery procedure and disclosure of the information as to the processes it has created would impact its competitive ability in the market.

(4) The proposed sealing is narrowly tailored to only include the documents referenced above.

(5) No less restrictive means exist to achieve the overriding interest because of the nature of the records to be sealed.

Chevron’s motions are therefore GRANTED.

Chevron is ordered to give notice.

Case Number: BC636816    Hearing Date: March 13, 2020    Dept: SWB

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. B

ROBERT PIONTKOWSKI,

Plaintiff,

Case No.:

BC636816

vs.

[Tentative] RULING

VEIOLIA ES INDUSTRIAL SERVICES, INC., et al.,

Defendants.

Hearing Date: March 13, 2020

Moving Parties: Non-party Chevron USA, Inc.

Responding Party: None

Motion of Non-Party Chevron USA, Inc. to Seal Documents Lodged with the Court in Support of the AMEC Defendants’ Reply Memorandum to Plaintiff’s Response to Motion for Summary Judgment or, in the Alternative, Summary Adjudication of Issues

The court considered the moving papers.

RULING

The motion is GRANTED. The court ORDERS that the lodged Reply Memorandum of Points and Authorities of AMEC Defendants to Plaintiff’s Opposition to AMEC’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication of Issues

At this time, no other records relating to this case are to be sealed. No person other than the court is authorized to inspect the sealed records. CRC Rule 2.551(e)(2), (3).

The court directs the court clerk to comply with the requirements and procedures set forth in CRC Rule 2.551(e) and (f) with respect to the records the court has ordered to be filed under seal.

BACKGROUND

On October 11, 2016, Robert Piontkowski filed a complaint against Veolia Industrial Services, Inc., Veolia North America, LLC, and Veolia Water Technologies, Inc. for negligence and gross negligence. Plaintiff alleges that on June 1, 2016, he was working at the Chevron refinery in El Segundo. He was performing his assigned job task and was required to drain a line at the worksite. However, the line was plugged and would not properly drain. In the process of performing this assigned task, scalding coke and other materials were violently released from the plugged line causing plaintiff to sustain serious burns and other injuries. Defendants were responsible for maintaining and clearing the lines at the refinery, including the one at issue. Defendants were sent a work order to clear out the line in question prior to the incident but failed to do so. As a result of defendants’ negligence, plaintiff sustained serious and permanent injuries and damages.

LEGAL AUTHORITY

California Rules of Court (“CRC”), Rule 2.550(c) states: “Unless confidentiality is required by law, court records are presumed to be open.” But a party may move to seal records pursuant to Rules 2.550-2.551. CRC Rule 2.551(b)(1) states: “A party requesting that a record be filed under seal must file a motion or an application for an order sealing the record. The motion or application must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing.” CRC Rule 2.550(d) states: “The court may order that a record be filed under seal only if it expressly finds facts that establish:

(1) There exists an overriding interest that overcomes the right of public access to the record;

(2) The overriding interest supports sealing the record;

(3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;

(4) The proposed sealing is narrowly tailored; and

(5) No less restrictive means exist to achieve the overriding interest.”

DISCUSSION

Non-party Chevron USA, Inc. requests that the court seal the lodged Reply Memorandum of Points and Authorities of AMEC Defendants to Plaintiff’s Opposition to AMEC’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication of Issues, filed this date and sealed.

On November 16, 2018, the parties to this action and non-party Chevron entered into a stipulated Protective Order as to Confidential Documents that would be produced by Chevron. In September 2019, the parties entered into a new Protective Order as to Confidential Documents to include newly added parties, filed as an order on September 10, 2019.

The above referenced documents contain redactions of information that the parties and Chevron have deemed confidential in accordance with the Protective Order.

The court makes the following findings of facts that establish the requirements set forth in CRC Rule 2.550(d):

(1) There exists an overriding interest in protecting disclosure of non-party Chevron’s commercially sensitive and proprietary information. Chevron contends that the documents referenced above contain, summarize, and refer to Chevron’s trade secrets and proprietary information, specifically descriptions of a specific coker unit at Chevron’s El Segundo oil refinery and coking process.

(2) The overriding interest of protecting Chevron supports sealing the records because such information is commercially sensitive and proprietary.

(3) A substantial probability exists that the overriding interest of protecting Chevron’s confidential and proprietary information will be prejudiced if the records are not sealed. As Chevron asserts, it is a trailblazer in its refinery procedure and disclosure of the information as to the processes it has created would impact its competitive ability in the market.

(4) The proposed sealing is narrowly tailored to only include the documents referenced above.

(5) No less restrictive means exist to achieve the overriding interest because of the nature of the records to be sealed. AMEC redacted only the information in the documents and declaration which Chevron asserted were confidential.

Chevron’s motion is therefore GRANTED.

Chevron is ordered to give notice.

****************************************************************************

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. B

ROBERT PIONTKOWSKI,

Plaintiff,

Case No.:

BC636816

vs.

[Tentative] RULING

VEIOLIA ES INDUSTRIAL SERVICES, INC., et al.,

Defendants.

Hearing Date: March 13, 2020

Moving Parties: Non-party Chevron USA, Inc.

Responding Party: None

Motion of Non-Party Chevron USA, Inc. to Seal Documents Lodged with the Court in Support of Plaintiff’s Response to AMEC Defendants’ Motion for Summary Judgment or, in the Alternative, Summary Adjudication of Issues

The court considered the moving papers.

RULING

The motion is GRANTED. The court ORDERS the following documents that were lodged conditionally under seal by plaintiff in response to AMEC defendants’ Motion for Summary Judgment or, in the alternative, Summary Adjudication of Issues, filed this date and sealed:

1. Unredacted plaintiff’s Response to AMEC defendants’ motion for summary judgment or, in the alternative, for summary adjudication of issues

2. Unredacted plaintiff’s Separate Statement of Facts in support of plaintiff’s response

3. Unredacted declaration of Jake Balser, Esq., and Exhibits A-G in support of plaintiff’s response.

At this time, no other records relating to this case are to be sealed. No person other than the court is authorized to inspect the sealed records. CRC Rule 2.551(e)(2), (3).

The court directs the court clerk to comply with the requirements and procedures set forth in CRC Rule 2.551(e) and (f) with respect to the records the court has ordered to be filed under seal.

BACKGROUND

On October 11, 2016, Robert Piontkowski filed a complaint against Veolia Industrial Services, Inc., Veolia North America, LLC, and Veolia Water Technologies, Inc. for negligence and gross negligence. Plaintiff alleges that on June 1, 2016, he was working at the Chevron refinery in El Segundo. He was performing his assigned job task and was required to drain a line at the worksite. However, the line was plugged and would not properly drain. In the process of performing this assigned task, scalding coke and other materials were violently released from the plugged line causing plaintiff to sustain serious burns and other injuries. Defendants were responsible for maintaining and clearing the lines at the refinery, including the one at issue. Defendants were sent a work order to clear out the line in question prior to the incident but failed to do so. As a result of defendants’ negligence, plaintiff sustained serious and permanent injuries and damages.

LEGAL AUTHORITY

California Rules of Court (“CRC”), Rule 2.550(c) states: “Unless confidentiality is required by law, court records are presumed to be open.” But a party may move to seal records pursuant to Rules 2.550-2.551. CRC Rule 2.551(b)(1) states: “A party requesting that a record be filed under seal must file a motion or an application for an order sealing the record. The motion or application must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing.” CRC Rule 2.550(d) states: “The court may order that a record be filed under seal only if it expressly finds facts that establish:

(1) There exists an overriding interest that overcomes the right of public access to the record;

(2) The overriding interest supports sealing the record;

(3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;

(4) The proposed sealing is narrowly tailored; and

(5) No less restrictive means exist to achieve the overriding interest.”

DISCUSSION

Non-party Chevron USA, Inc. requests that the court seal the unredacted versions of plaintiff’s Response, plaintiff’s Separate Statement, and the declaration of Jake Balser, Esq. and supporting Exhibits A through G, to the AMEC defendants’ motion for summary judgment or, in the alternative, summary adjudication of issues.

On November 16, 2018, the parties to this action and non-party Chevron entered into a stipulated Protective Order as to Confidential Documents that would be produced by Chevron. In September 2019, the parties entered into a new Protective Order as to Confidential Documents to include newly added parties, filed as an order on September 10, 2019.

The above referenced documents contain redactions of information that the parties and Chevron have deemed confidential in accordance with the Protective Order.

The court makes the following findings of facts that establish the requirements set forth in CRC Rule 2.550(d):

(1) There exists an overriding interest in protecting disclosure of non-party Chevron’s commercially sensitive and proprietary information. Chevron contends that the documents referenced above contain, summarize, and refer to Chevron’s trade secrets and proprietary information, specifically descriptions of a specific coker unit at Chevron’s El Segundo oil refinery and coking process.

(2) The overriding interest of protecting Chevron supports sealing the records because such information is commercially sensitive and proprietary.

(3) A substantial probability exists that the overriding interest of protecting Chevron’s confidential and proprietary information will be prejudiced if the records are not sealed. As Chevron asserts, it is a trailblazer in its refinery procedure and disclosure of the information as to the processes it has created would impact its competitive ability in the market.

(4) The proposed sealing is narrowly tailored to only include the documents referenced above.

(5) No less restrictive means exist to achieve the overriding interest because of the nature of the records to be sealed. Plaintiff redacted only the information in the documents and declaration which Chevron asserted were confidential.

Chevron’s motion is therefore GRANTED.

Chevron is ordered to give notice.

Case Number: BC636816    Hearing Date: January 24, 2020    Dept: SWB

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. B

ROBERT PIONTKOWSKI,

Plaintiff,

Case No.:

BC636816

vs.

[Tentative] RULING

VEOLIA ES INDUSTRIAL SERVICES, INC., et al.,

Defendants.

Hearing Date: January 24, 2020 (continued from January 14)

Moving Parties: Defendants Amec Foster Wheeler USA Corporation and Amec Foster Wheeler North America Corp.

Responding Party: Plaintiff Robert Piontkowski

Motion for Summary Judgment or, alternatively, for Summary Adjudication

The court considered the moving, opposition, and reply papers. The court also considered oral argument at the hearing on January 14 and the supplemental responses. The hearing was continued to January 24 to allow plaintiff the opportunity to take certain depositions noticed by plaintiff for January 16 and 17.

RULING

The motion for summary judgment is GRANTED. The motion for summary adjudication is MOOT.

BACKGROUND

On October 11, 2016, Robert Piontkowski filed a complaint against Veolia Industrial Services, Inc., Veolia North America, LLC, and Veolia Water Technologies, Inc. for negligence and gross negligence.

On August 1, 2017, the court approved the stipulation for protective order regarding confidential information.

On June 1, 2018, plaintiff filed a First Amended Complaint for (1) negligence, (2) gross negligence, (3) design defect, (4) manufacturing defect, (5) marketing defect, and (6) breach of implied warranties. Plaintiff added Amec Foster Wheeler North America Corp., Amec Foster Wheeler USA Corporation, Nooter Construction Company, and Nooter Corporation as Doe defendants.

LEGAL AUTHORITY

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843. “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Adler v. Manor Healthcare Corp. (1992) 7 Cal. App. 4th 1110, 1119.

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1519. A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” CCP § 437c(p)(2). “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” CCP § 437c(p)(2). “If the plaintiff cannot do so, summary judgment should be granted.” Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467.

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” Avivi, 159 Cal. App. 4th at 467; CCP §437c(c).

DISCUSSION

Defendants Amec Foster Wheeler USA Corporation and Amec Foster Wheeler North America Corp. (“Amec defendants”) request summary judgment against plaintiff on the ground there are no triable issues of material facts and, as a matter of law, they are entitled to judgment in their favor.

In the alternative, the Amec defendants request summary adjudication as follows:

Issue No. 1: Plaintiff’s 1st cause of action for negligence against the Amec defendants fails because plaintiff cannot establish the required elements of this claim.

Issue No. 2: Plaintiff’s 2nd cause of action fails because gross negligence is not an independent cause of action.

Issue No. 3: Plaintiff’s 3rd cause of action against the Amec defendants fails because the Amec defendants did not design the product alleged to be defective.

Issue No. 4: Plaintiff’s 4th cause of action fails because the Amec defendants did not manufacture the product alleged to be defective.

Issue No. 5: Plaintiff’s 5th cause of action fails because the Amec defendants did not market the product alleged to be defective.

Issue No. 6: Plaintiff’s 6th cause of action for breach of implied warranty fails because plaintiff cannot establish all required elements of this claim.

In the First Amended Complaint, plaintiff alleges that on June 1, 2016, he was working at the Chevron refinery in El Segundo. On the date in question, he was performing his assigned job task and was required to drain a line on a Coker Unit at the worksite. However, the line was plugged and would not properly drain. In the process of performing this assigned task, scalding coke and other materials were violently released from the plugged line causing plaintiff to sustain serious burns and other injuries. FAC, ¶29. The Coker Unit was defective, which led to repeated plugging of drain lines on the Coker Unit, including the plugged drain line that caused plaintiff’s injuries. Id., ¶30.

Plaintiff further alleges that Amec Foster Wheeler North America Corp. and/or Amec Foster Wheeler USA Corp. are the successors or continuation of Foster Wheeler Corporation and are legally responsible for all liabilities incurred when it was known as Foster Wheeler Corp. Id., ¶21.

Request for continuance

Plaintiff requests a continuance of the hearing under CCP §437c(h) to take the depositions of Amec employees. Under CCP §437c(h), “[i]f it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just.” Plaintiff’s counsel’s declaration should show the following: (1) facts establishing a likelihood that controverting evidence may exist; (2) the specific reasons why such evidence cannot be presented at the present time; (3) an estimate of the time necessary to obtain such evidence; and (4) the specific steps or procedures the opposing party intends to utilize to obtain such evidence. See Cooksey v. Alexakis (2004) 123 Cal. App. 4th 246 (“It is not sufficient under the statute [437c(h)] merely to indicate that further discovery or investigation is contemplated. The statute makes it a condition that the party moving for a continuance show facts essential to justify opposition may exist.”). See also A & B Painting & Drywall, Inc. v. Superior Court (1994) 25 Cal. App. 4th 349, 356-57 (“a continuance for the purpose of taking depositions was not warranted when the declaration submitted in support of the continuance did not “explain what efforts were made to the necessary depositions or why they could not have been taken earlier.”).

Plaintiff’s counsel’s declaration is insufficient. Plaintiff’s opposition to the MSJ was due November 26, 2019. On November 15, 2019, plaintiff served deposition notices for employees of the AMEC defendants for November 21, 2019. The Amec defendants objected. Plaintiff filed a motion to compel depositions for January 3, 2020 but then took it off calendar.

After oral argument, the court continued the hearing to January 24, 2020, to allow plaintiff to take two noticed depositions of Amec officers and to file a supplemental response.

Issue No. 1: Plaintiff’s 1st cause of action for negligence fails because plaintiff cannot establish all required elements of this claim.

Under the negligence cause of action, plaintiff alleges that defendants are negligent for

a. failure to properly and safely perform duties which defendants agreed to undertake or perform;

b. failure to maintain and/or clear the line;

c. failure to identify and remedy a dangerous condition;

d. vicariously liable for their employees’ negligence;

e. and other acts deemed negligent. FAC, ¶34.

“To establish causation, a plaintiff must prove that the defendant’s conduct was a ‘substantial factor’ in bringing about his or her harm. Stated differently, evidence of causation ‘must rise to the level of a reasonable probability based upon competent testimony. A possible cause only becomes “probable” when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action.’” Bowman v. Wyatt (2010) 186 Cal. App. 4th 286, 312 (citations and internal quotations omitted).

The Amec defendants present evidence that they were not involved with nor did they participate in any way with the 1968 design of the subject Coker Unit, the subsequent installation of valves at the subject unit, or the replacement of the Coke drums. Further, they present evidence that they are not the successors-in-interest to, nor have they assumed the liabilities of, FWC, the entity that was involved in the design of the Coker Unit. See Stephen Conway decl., Martin Barbato decl.

The court finds that the Amec defendants have met their burden to show that plaintiff cannot establish the elements of breach and causation. Plaintiff fails to present sufficient evidence to raise a triable issue of material fact. Plaintiff has not presented any evidence of a breach or causation that rises to the level of a reasonable probability. “’An issue of fact can only be created by a conflict in the evidence. It is not created by speculation, conjecture, imagination or guesswork.’” Lyons v. Security Pacific National Bank (1995) 40 Cal. App. 4th 1001, 1014.

Issue No. 2: Plaintiff’s 2nd cause of action fails because gross negligence is not an independent cause of action.

“Numerous California cases have discussed the doctrine of gross negligence. Invariably these cases have turned upon an interpretation of a statute which has used the words ‘gross negligence’ in the text.” Continental Ins. Co. v. American Protection Industries (1987) 197 Cal. App. 3d 322, 329. The other exception where a plaintiff may plead gross negligence is in the context of “waiver of liability for future negligence.” In those cases, “courts have held that conduct that substantially or unreasonably increased the inherent risk of an activity or actively concealed a known risk could amount to gross negligence, which would not be barred by a release agreement.” Anderson v. Fitness Internat., LLC (2016) 4 Cal. App. 5th 867, 881.

Under this cause of action, plaintiff alleges the same as under the 1st cause of action.

Defendants have shown that plaintiff cannot establish the elements of gross negligence. The opposition does not address.

Issue No. 3: Plaintiff’s 3rd cause of action against the Amec defendants fails because the Amec defendants did not design the product alleged to be defective.

In the FAC, plaintiff alleges that defendants’ Coker Unit was not reasonably safe for its intended uses and was defectively designed. FAC, ¶42. Defendants manufactured, marketed, promoted, distributed, and sold the Coker Unit in the stream of commerce despite the design defects that defendants knew or should have known. Id., ¶43. The Coker Unit was defectively designed when compared to safer alternative designs for coker units. Workers who use defendants’ Coker Unit are exposed to a number of dangerous defects, which include repeated plugging or clogging of drain lines. Id., ¶44. Prior to the manufacture, sale, and distribution of the Coker Unit, defendants knew or should have know that the Coker Unit was defectively designed. Id., ¶46. The Coker Unit was used for the intended purpose and the dangerous defects could not have been discovered through the exercise of due care. Id., ¶47.

The Amec defendants have met their burden of showing that plaintiff cannot establish the element that defendants designed the product at issue. See under the 1st cause of action.

The opposition does not address.

Issue No. 5: Plaintiff’s 5th cause of action fails because the Amec defendants did not market the product alleged to be defective.

Defendants have met their burden to show that plaintiff cannot establish the elements of this cause of action because the evidence indicates that defendants did not manufacture any aspect of the Coker Unit or its drain lines and thus, defendants did not have a duty to warn of any inherent hazard that may have existed in the Coker Unit. Further, plaintiff has not produced any documents showing that AMEC marketed the Coker Unit. The opposition does not address.

Issue No. 6: Plaintiff’s 6th cause of action for breach of implied warranty fails because plaintiff cannot establish all required elements of this claim.

“An implied warranty of fitness for a particular purpose arises only where (1) the purchaser at the time of contracting intends to use the goods for a particular purpose, (2) the seller at the time of contracting has reason to know of this particular purpose, (3) the buyer relies on the seller’s skill or judgment to select or furnish goods suitable for the particular purpose, and (4) the seller at the time of contracting has reason to know that the buyer is relying on such skill and judgment.” Keith v. Buchanan (1985) 173 Cal. App. 3d 13, 25 (citation omitted); see also CACI 3211. Vertical privity is a prerequisite in California for recovery on a theory of breach of the implied warranty of fitness, unless an exception applies.

The parties do not dispute that plaintiff was not the purchaser of the subject Coker Unit; thus, he was not in privity with Amec defendants. Plaintiff has not shown that any of the exceptions apply. Further, this claim is premised on the allegation that the Amec defendants designed, manufacture, and/or marketed the subject Coker Unit. As stated above, there is no evidence of such. The opposition does not address.

Evidentiary objections

The court declines to rule on plaintiff’s objections to Mark Dangler’s declaration. CCP §437c(q).

Plaintiff’s supplemental response does not refute the Amec defendants’ evidence that they are not successors-in-interest to Foster Wheeler or that they did not assume the liabilities. In a footnote, plaintiff states that “Defendants finally disclosed the name of the ostensible successor-in-interest to Foster Wheeler Corp., which was identified as Foster Wheeler, LLC.”

The motion for summary judgment is therefore GRANTED. The motion for summary adjudication is MOOT in light of the ruling on the motion for summary judgment.

Case Number: BC636816    Hearing Date: January 14, 2020    Dept: SWB

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. B

ROBERT PIONTKOWSKI,

Plaintiff,

Case No.:

BC636816

vs.

[Tentative] RULING

VEOLIA ES INDUSTRIAL SERVICES, INC., et al.,

Defendants.

Hearing Date: January 14, 2020

Moving Parties: Defendants AMEC Foster Wheeler USA Corporation and AMEC Foster Wheeler North America Corp.

Responding Party: Plaintiff Robert Piontkowski

Motion for Summary Judgment or, alternatively, for Summary Adjudication

The court considered the moving, opposition, and reply papers.

RULING

The motion for summary judgment is GRANTED. The motion for summary adjudication is MOOT.

BACKGROUND

On October 11, 2016, Robert Piontkowski filed a complaint against Veolia Industrial Services, Inc., Veolia North America, LLC, and Veolia Water Technologies, Inc. for negligence and gross negligence.

On August 1, 2017, the court approved the stipulation for protective order regarding confidential information.

On June 1, 2018, plaintiff filed a First Amended Complaint for (1) negligence, (2) gross negligence, (3) design defect, (4) manufacturing defect, (5) marketing defect, and (6) breach of implied warranties. Plaintiff added AMEC Foster Wheeler North America Corp., AMEC Foster Wheeler USA Corporation, Nooter Construction Company, and Nooter Corporation as Doe defendants.

LEGAL AUTHORITY

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843. “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Adler v. Manor Healthcare Corp. (1992) 7 Cal. App. 4th 1110, 1119.

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1519. A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” CCP § 437c(p)(2). “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” CCP § 437c(p)(2). “If the plaintiff cannot do so, summary judgment should be granted.” Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467.

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” Avivi, 159 Cal. App. 4th at 467; CCP §437c(c).

DISCUSSION

Defendants AMEC Foster Wheeler USA Corporation and AMEC Foster Wheeler North America Corp. (“AMEC defendants”) request summary judgment against plaintiff on the ground there are no triable issues of material facts and, as a matter of law, they are entitled to judgment in their favor.

In the alternative, the AMEC defendants request summary adjudication as follows:

Issue No. 1: Plaintiff’s 1st cause of action for negligence against the AMEC defendants fails because plaintiff cannot establish the required elements of this claim.

Issue No. 2: Plaintiff’s 2nd cause of action fails because gross negligence is not an independent cause of action.

Issue No. 3: Plaintiff’s 3rd cause of action against the AMEC defendants fails because the AMEC defendants did not design the product alleged to be defective.

Issue No. 4: Plaintiff’s 4th cause of action fails because the AMEC defendants did not manufacture the product alleged to be defective.

Issue No. 5: Plaintiff’s 5th cause of action fails because the AMEC defendants did not market the product alleged to be defective.

Issue No. 6: Plaintiff’s 6th cause of action for breach of implied warranty fails because plaintiff cannot establish all required elements of this claim.

In the First Amended Complaint, plaintiff alleges that on June 1, 2016, he was working at the Chevron refinery in El Segundo. On the date in question, he was performing his assigned job task and was required to drain a line on a Coker Unit at the worksite. However, the line was plugged and would not properly drain. In the process of performing this assigned task, scalding coke and other materials were violently released from the plugged line causing plaintiff to sustain serious burns and other injuries. FAC, ¶29. The Coker Unit was defective, which led to repeated plugging of drain lines on the Coker Unit, including the plugged drain line that caused plaintiff’s injuries. Id., ¶30.

Plaintiff further alleges that AMEC Foster Wheeler North America Corp. and/or AMEC Foster Wheeler USA Corp. are the successors or continuation of Foster Wheeler Corporation and are legally responsible for all liabilities incurred when it was known as Foster Wheeler Corp. Id., ¶21.

Request for continuance

Plaintiff requests a continuance of the hearing under CCP §437c(h) to take the depositions of AMEC employees. Under CCP §437c(h), “[i]f it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just.” Plaintiff’s counsel’s declaration should show the following: (1) facts establishing a likelihood that controverting evidence may exist; (2) the specific reasons why such evidence cannot be presented at the present time; (3) an estimate of the time necessary to obtain such evidence; and (4) the specific steps or procedures the opposing party intends to utilize to obtain such evidence. See Cooksey v. Alexakis (2004) 123 Cal. App. 4th 246 (“It is not sufficient under the statute [437c(h)] merely to indicate that further discovery or investigation is contemplated. The statute makes it a condition that the party moving for a continuance show facts essential to justify opposition may exist.”). See also A & B Painting & Drywall, Inc. v. Superior Court (1994) 25 Cal. App. 4th 349, 356-57 (“a continuance for the purpose of taking depositions was not warranted when the declaration submitted in support of the continuance did not “explain what efforts were made to the necessary depositions or why they could not have been taken earlier.”).

Plaintiff’s counsel’s declaration is insufficient. Plaintiff’s opposition to the MSJ was due November 26, 2019. On November 15, 2019, plaintiff served deposition notices for employees of the AMEC defendants for November 21, 2019. AMEC defendants objected. Plaintiff filed a motion to compel depositions for January 3, 2020 but then took it off calendar. The court denies the request for a continuance.

Issue No. 1: Plaintiff’s 1st cause of action for negligence fails because plaintiff cannot establish all required elements of this claim.

Under the negligence cause of action, plaintiff alleges that defendants are negligent for

a. failure to properly and safely perform duties which defendants agreed to undertake or perform;

b. failure to maintain and/or clear the line;

c. failure to identify and remedy a dangerous condition;

d. vicariously liable for their employees’ negligence;

e. and other acts deemed negligent. FAC, ¶34.

“To establish causation, a plaintiff must prove that the defendant’s conduct was a ‘substantial factor’ in bringing about his or her harm. Stated differently, evidence of causation ‘must rise to the level of a reasonable probability based upon competent testimony. A possible cause only becomes “probable” when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action.’” Bowman v. Wyatt (2010) 186 Cal. App. 4th 286, 312 (citations and internal quotations omitted).

The AMEC defendants present evidence that they were not involved with nor did they participate in any way with the 1968 design of the subject Coker Unit, the subsequent installation of valves at the subject unit, or the replacement of the Coke drums. Further, they present evidence that they are not the successors-in-interest to, nor have they assumed the liabilities of, FWC, the entity that was involved in the design of the Coker Unit. See Stephen Conway decl., Martin Barbato decl.

The court finds that the AMEC defendants have met their burden to show that plaintiff cannot establish the elements of breach and causation. Plaintiff fails to present sufficient evidence to raise a triable issue of material fact. Plaintiff has not presented any evidence of a breach or causation that rises to the level of a reasonable probability. “’An issue of fact can only be created by a conflict in the evidence. It is not created by speculation, conjecture, imagination or guesswork.’” Lyons v. Security Pacific National Bank (1995) 40 Cal. App. 4th 1001, 1014.

Issue No. 2: Plaintiff’s 2nd cause of action fails because gross negligence is not an independent cause of action.

“Numerous California cases have discussed the doctrine of gross negligence. Invariably these cases have turned upon an interpretation of a statute which has used the words ‘gross negligence’ in the text.” Continental Ins. Co. v. American Protection Industries (1987) 197 Cal. App. 3d 322, 329. The other exception where a plaintiff may plead gross negligence is in the context of “waiver of liability for future negligence.” In those cases, “courts have held that conduct that substantially or unreasonably increased the inherent risk of an activity or actively concealed a known risk could amount to gross negligence, which would not be barred by a release agreement.” Anderson v. Fitness Internat., LLC (2016) 4 Cal. App. 5th 867, 881.

Under this cause of action, plaintiff alleges the same as under the 1st cause of action.

Defendants have shown that plaintiff cannot establish the elements of gross negligence. The opposition does not address.

Issue No. 3: Plaintiff’s 3rd cause of action against the AMEC defendants fails because the AMEC defendants did not design the product alleged to be defective.

In the FAC, plaintiff alleges that defendants’ Coker Unit was not reasonably safe for its intended uses and was defectively designed. FAC, ¶42. Defendants manufactured, marketed, promoted, distributed, and sold the Coker Unit in the stream of commerce despite the design defects that defendants knew or should have known. Id., ¶43. The Coker Unit was defectively designed when compared to safer alternative designs for coker units. Workers who use defendants’ Coker Unit are exposed to a number of dangerous defects, which include repeated plugging or clogging of drain lines. Id., ¶44. Prior to the manufacture, sale, and distribution of the Coker Unit, defendants knew or should have know that the Coker Unit was defectively designed. Id., ¶46. The Coker Unit was used for the intended purpose and the dangerous defects could not have been discovered through the exercise of due care. Id., ¶47.

The AMEC defendants have met their burden of showing that plaintiff cannot establish the element that defendants designed the product at issue. See under the 1st cause of action.

The opposition does not address.

Issue No. 5: Plaintiff’s 5th cause of action fails because the AMEC defendants did not market the product alleged to be defective.

Defendants have met their burden to show that plaintiff cannot establish the elements of this cause of action because the evidence indicates that defendants did not manufacture any aspect of the Coker Unit or its drain lines and thus, defendants did not have a duty to warn of any inherent hazard that may have existed in the Coker Unit. Further, plaintiff has not produced any documents showing that AMEC marketed the Coker Unit. The opposition does not address.

Issue No. 6: Plaintiff’s 6th cause of action for breach of implied warranty fails because plaintiff cannot establish all required elements of this claim.

“An implied warranty of fitness for a particular purpose arises only where (1) the purchaser at the time of contracting intends to use the goods for a particular purpose, (2) the seller at the time of contracting has reason to know of this particular purpose, (3) the buyer relies on the seller’s skill or judgment to select or furnish goods suitable for the particular purpose, and (4) the seller at the time of contracting has reason to know that the buyer is relying on such skill and judgment.” Keith v. Buchanan (1985) 173 Cal. App. 3d 13, 25 (citation omitted); see also CACI 3211. Vertical privity is a prerequisite in California for recovery on a theory of breach of the implied warranty of fitness, unless an exception applies.

The parties do not dispute that plaintiff was not the purchaser of the subject Coker Unit; thus, he was not in privity with AMEC defendants. Plaintiff has not shown that any of the exceptions apply. Further, this claim is premised on the allegation that the AMEC defendants designed, manufacture, and/or marketed the subject Coker Unit. As stated above, there is no evidence of such. The opposition does not address.

Evidentiary objections

The court declines to rule on plaintiff’s objections to Mark Dangler’s declaration. CCP §437c(q).

The motion for summary judgment is therefore GRANTED. The motion for summary adjudication is MOOT in light of the ruling on the motion for summary judgment.

Case Number: BC636816    Hearing Date: November 15, 2019    Dept: SWB

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. B

ROBERT PIONTKOWSKI,

Plaintiff,

Case No.:

BC636816

vs.

[Tentative] RULING

VEOLIA ES INDUSTRIAL SERVICES, INC., et al.,

Defendants.

Hearing Date: November 15, 2019

Moving Parties: Plaintiff Robert Piontkowski

Responding Party: Defendants Nooter Construction Company and Nooter Corporation

Motion to Strike and Tax Costs

The court considered the moving and opposition papers.

RULING

The motion is DENIED.

BACKGROUND

On October 11, 2016, Robert Piontkowski filed a complaint against Veolia Industrial Services, Inc., Veolia North America, LLC, and Veolia Water Technologies, Inc. for negligence and gross negligence.

On August 1, 2017, the court approved the stipulation for protective order regarding confidential information.

On June 1, 2018, plaintiff filed a First Amended Complaint for (1) negligence, (2) gross negligence, (3) design defect, (4) manufacturing defect, (5) marketing defect, and (6) breach of implied warranties. Plaintiff added AMEC Foster Wheeler North America Corp., AMEC Foster Wheeler USA Corporation, Nooter Construction Company, and Nooter Corporation as Doe defendants.

On April 23, 2019, plaintiff filed amendments designating Fluor Enterprises, Inc. as Doe 5 and Fluor Corporation as Doe 6.

On June 24, 2019, the court granted Veolia Es Industrial Services, Inc., Veolia Water Technologies, Inc., and Veolia North America, LLC’s motion for summary judgment.

LEGAL AUTHORITY

CCP §1032(b) states: “Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.”

CCP §1033.5(c) states, in relevant part: “Any award for costs shall be subject to the following:

(1) Costs are allowable if incurred, whether or not paid.

(2) Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.

(3) Allowable costs shall be reasonable in amount.

(4) Items not mentioned in this section . . . may be allowed . . . in the Court’s discretion.”

“If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs.” Ladas v. California State Automotive Assoc. (1993) 19 Cal. App. 4th 761, 774 (citation omitted). Id. “The court’s first determination, therefore, is whether the statute expressly allows the particular item, and whether it appears proper on its face. If so, the burden is on the objecting party to show them to be unnecessary or unreasonable.” Nelson v. Anderson (1999) 72 Cal. App. 4th 111, 131 (citations omitted). “[I]t is not enough for the losing party to attack submitted costs by arguing that he thinks the costs were not necessary or reasonable. Rather the losing party has the burden to present evidence and prove that the claimed costs are not recoverable.” Seever v. Copley Press, Inc. (2006) 141 Cal. App. 4th 1550, 1557.

DISCUSSION

Plaintiff requests an order that the court strike certain costs from defendants Nooter’s memorandum of cost.

Item 4: Deposition costs - $5,453.96

Under CCP §1033.5(a)(3)(A) and (C), taking, video recording, and transcribing necessary depositions are allowed as well as “[t]ravel expenses to attend depositions.”

Plaintiff disputes that Nooter’s costs for the depositions of James Byrd ($1,004.07), Patrick Kephart ($615.35), Mark Alvarado ($391.30), Celso Amador ($434.35), Michael San Miguel ($324.45), Jesus Gutierrez ($709.05), Jorge Quezada ($488.50), Robert Clifton Hodges ($960.42 incl. $45.67 for travel), and Angel Negrete ($526.47 incl. $25.07 for travel) were necessary because, other than Gutierrez, they were not relied upon or utilized in Nooter’s motion for summary judgment.

In opposition, defendants argue that the depositions were reasonable and necessary because the deponents were co-workers, supervisors, and percipient witnesses both as to the incident and to the investigation into the incident. The nature of plaintiff’s case is complicated because of the type of work he was performing and the intricacies of the causes of action. The depositions were critical for defendants to conduct their investigations and to develop their defenses. Defendants assert that depositions serve a vital function of pretrial discovery and are vital for case development and trial strategy, and thus are reasonable and necessary even where the testimony is not used. Further, the depositions were important to plaintiff’s preparation of the case given the fact that he noticed several of them for which Nooter is claiming costs for the transcripts.

The court finds that the deposition costs are allowable.

Item 5: Service of Process - $2,281.16

Defendants are seeking costs for “personal service” as to Robert Piontkowski ($993.40), Veolia Es Industrial ($544.80), AMEC Foster Wheeler ($371.48), and Chevron USA, Inc. ($371.48). Although not stated on the costs bill, defendant contends that the costs are for personal service of the motion for summary judgment. “Messenger fees are not expressly authorized by statute, by may be allowed in the discretion of the court.” Nelson, supra, at 132 (citation omitted).

Plaintiff argues that Nooter has not provided any information as to why “personal service” was reasonably necessary to the conduct of the litigation, how that service was effectuated, that the amount charged is reasonable, or that service through email or regular mail would have been insufficient.

In opposition, defendants argue that plaintiff’s assertions are unfounded. Defendants further explain that personal service was necessary based on the deadline defendants were up against for service and notice of the motion for summary judgment. Further, defendants contend, the documents were subject to a protective order and personal service was the best means of effecting service of the MSJ.

The court finds that defendants have sufficiently explained and supported the costs as reasonably necessary to serve the motion for summary judgment by personal service.

The motion is DENIED.

Moving defendants are ordered to give notice of this ruling.

*****************************************************

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. B

ROBERT PIONTKOWSKI,

Plaintiff,

Case No.:

BC636816

vs.

[Tentative] RULING

VEOLIA ES INDUSTRIAL SERVICES, INC., et al.,

Defendants.

Hearing Date: November 15, 2019

Moving Parties: Plaintiff Robert Piontkowski

Responding Party: Defendant Veolia Es Industrial Services, Inc.

Motion to Strike and Tax Costs

The court considered the moving, opposition, and supplemental opposition papers.

RULING

The motion is GRANTED in part and DENIED in part. The court taxes Item 4.e. in the amount of $871.99 and strikes Item 16 in the amount of $178.68, for a total of $1,050.67.

BACKGROUND

On October 11, 2016, Robert Piontkowski filed a complaint against Veolia Industrial Services, Inc., Veolia North America, LLC, and Veolia Water Technologies, Inc. for negligence and gross negligence.

On August 1, 2017, the court approved the stipulation for protective order regarding confidential information.

On June 1, 2018, plaintiff filed a First Amended Complaint for (1) negligence, (2) gross negligence, (3) design defect, (4) manufacturing defect, (5) marketing defect, and (6) breach of implied warranties. Plaintiff added AMEC Foster Wheeler North America Corp., AMEC Foster Wheeler USA Corporation, Nooter Construction Company, and Nooter Corporation as Doe defendants.

On April 23, 2019, plaintiff filed amendments designating Fluor Enterprises, Inc. as Doe 5 and Fluor Corporation as Doe 6.

On June 24, 2019, the court granted Veolia Es Industrial Services, Inc., Veolia Water Technologies, Inc., and Veolia North America, LLC’s motion for summary judgment.

On August 28, 2019, defendants Veolia filed a memorandum of costs.

LEGAL AUTHORITY

CCP §1032(b) states: “Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.”

CCP §1033.5(c) states, in relevant part: “Any award for costs shall be subject to the following:

(1) Costs are allowable if incurred, whether or not paid.

(2) Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.

(3) Allowable costs shall be reasonable in amount.

(4) Items not mentioned in this section . . . may be allowed . . . in the Court’s discretion.”

“If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs.” Ladas v. California State Automotive Assoc. (1993) 19 Cal. App. 4th 761, 774 (citation omitted). Id. “The court’s first determination, therefore, is whether the statute expressly allows the particular item, and whether it appears proper on its face. If so, the burden is on the objecting party to show them to be unnecessary or unreasonable.” Nelson v. Anderson (1999) 72 Cal. App. 4th 111, 131 (citations omitted). “[I]t is not enough for the losing party to attack submitted costs by arguing that he thinks the costs were not necessary or reasonable. Rather the losing party has the burden to present evidence and prove that the claimed costs are not recoverable.” Seever v. Copley Press, Inc. (2006) 141 Cal. App. 4th 1550, 1557.

DISCUSSION

Plaintiff requests an order that the court strike certain costs from defendant Veolia’s memorandum of costs.

Item 1: Filing and motion fees

At 1.g., defendant is requesting $5,045.45 for “service of court documents to counsel via hand delivery.” Plaintiff argues that such costs are not reasonably necessary to the conduct of litigation and that the amount is not reasonable.

In opposition, defendant argues that such costs were necessary to the timely filing and service of court documents.

The court finds that the costs are reasonably necessary.

Defendant is requesting $1,305 as a filing fee for its answer. Plaintiff argues that this amount is unreasonable. The court finds that this amount is allowable because it covers three defendants.

Defendant is requesting $72.72, which plaintiff contends is unattached to any motion, response, or brief. In opposition, defendant explains that the cost is related to the protective order.

The court finds that this fee is allowable.

Item 4: Deposition costs

At 4.e., defendant is requesting $20,392.68 in travel costs associated with depositions taken by defense counsel M. Rodriguez [$7,401.46] and M. Alan Holcomb [$12,991.22].

Under CCP §1033.5(a)(3)(C), travel expenses to attend depositions are allowable as costs.

Plaintiff argues that the costs are unsupported by any documentation or explanation as to how the costs are apportioned. Further, plaintiff argues, the amounts appear to be unreasonable.

In opposition, defendant contends that M. Rodriguez is based out of the firm’s Las Vegas office and A. Holcomb is based out of the Atlanta office. Defendant contends that counsel flew business class “to account for fluid scheduling of depositions.” Defendant argues that Holcomb’s attendance was reasonably necessary because of his expertise as lead counsel and the scheduling requirements of Veolia’s counsel.

Defendant provided over 200 pages of receipts and a chart, pursuant to court order, of the breakdown of costs for air, ground transportation, lodging/hotel, and food for each deposition.

The chart reflects travel costs for a CMC on February 13, 2018, for food ($9.08 and $34.51 [Bates A11]), lodging ($278.44 [A12]), and ground transportation ($21.08 [A13], $6.17 [A14], $6.58 [A15], $20.75 [A16], $27.60 [A17]), which is not allowable under “travel expenses to attend depositions.” “The only travel expenses authorized by section 1033.5 are those to attend depositions.” Ladas, supra, at 775. The court taxes $404.21.

Further, some of the lunches and dinners are for more than one person, including the local deponent, of which meal expenses are not allowable. In any event, the amounts are not reasonable as follows: The court reduces the meals on March 27, 2018 [Bates A5], December 2 and 4, 2018 [Bates A86] and August 10, 2017 [Bates A161] to $60 each, and meal on August 11, 2017 [A36] to $30, and meal on December 3, 2018 [A87] to $25. Thus, the court taxes $467.78.

Also at 4.e., defendant is requesting costs for deposition transcripts and synched videos. Under CCP §1033.5(a)(3)(A), taking, video recording, and transcribing necessary depositions are allowable as costs.

Plaintiff argues that the purported costs are different and in excess of the charges paid by plaintiff for the same depositions.

In opposition, defendant explains that its costs included the actual costs of the deposition, not just a copy of a transcript.

The costs are allowable.

Item 5: Service of Process

At 5.d., defendant is requesting $28 for Kaiser – Garden Grove and $28 for Kaiser Urgent Care – Garden Grove for service on March 5, 2017.

Plaintiff contends that defendant is claiming duplicative service fees.

In opposition, defendant assert that the costs are not duplicative.

The costs are allowable and not duplicative because the entities are different.

Item 16: Other – Copies of Court Documents

Defendant is requesting $178.68 for copies of court documents. Defendant contends that they were used as exhibits for use at depositions and hearings.

Photocopying charges are not allowable as costs. CCP §1033.5(b)(3). Photocopies of exhibits may be allowed if they are reasonably helpful to aid the trier of fact. CCP §1033.5(a)(13). Defendant has not shown that these costs are recoverable. The court strikes $178.68.

The motion is GRANTED in part and DENIED in part. The court taxes Item 4.e. in the amount of $871.99 and strikes Item 16 in the amount of $178.68, for a total of $1,050.67.

Defendant is ordered to give notice of this ruling.

Case Number: BC636816    Hearing Date: October 25, 2019    Dept: SWB

*******As this tentative is to continue, if no party appears the court will assume all parties submit to the continued date 

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. B

ROBERT PIONTKOWSKI,

Plaintiff,

Case No.:

BC636816

vs.

[Tentative] RULING

VEOLIA ES INDUSTRIAL SERVICES, INC., et al.,

Defendants.

Hearing Date: October 25, 2019

Moving Parties: Plaintiff Robert Piontkowski

Responding Party: Defendant Veolia Es Industrial Services, Inc.

Motion to Strike and Tax Costs

The court considered the moving and opposition papers.

RULING

The motion is CONTINUED to November 15, 2019, at 8:30 a.m. to allow defense counsel to provide a chart summarizing the over 200 pages of travel receipts, which were attached to the opposition. The breakdown is to be by deposition and the costs incurred by category—air transportation, ground transportation, hotel, and food.

Defendant is to file their supplement by November 7, 2019. Plaintiff may file a reply by November 12, 2019.

Defendant is ordered to give notice of this ruling.

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