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

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

PATRICIA D. NIETO

DEIRDRE HILL

 

Party Details

Plaintiff and Petitioner

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

Plaintiff and Petitioner Attorneys

KIESEL PAUL R. ESQ.

WEXLER NOAH M.

KIESEL PAUL ROBERT ESQ.

BALSER CHRISTOPHER JAKE

Defendant and Respondent Attorneys

ROBERTS D. LEE JR

HERZFELDT LORIN M.

RODRIGUEZ-SHAPOVAL MARISA ESQ.

RODRIGUEZ-SHAPOVAL MARIA

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: 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.