This case was last updated from Los Angeles County Superior Courts on 06/14/2019 at 10:57:09 (UTC).

KAREN DRAPER ET AL VS RH PETERSON CO

Case Summary

On 10/17/2017 KAREN DRAPER filed a Personal Injury - Other Product Liability lawsuit against RH PETERSON CO. This case was filed in Los Angeles County Superior Courts, Pomona Courthouse South located in Los Angeles, California. The Judges overseeing this case are DENNIS J. LANDIN, GLORIA WHITE-BROWN and CHRISTOPHER K. LUI. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****0137

  • Filing Date:

    10/17/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Product Liability

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

DENNIS J. LANDIN

GLORIA WHITE-BROWN

CHRISTOPHER K. LUI

 

Party Details

Petitioners and Plaintiffs

DRAPER HOWARD GEORGE

DRAPER KAREN

Defendants and Respondents

DOES 1 TO 30

R.H. PETERSON CO

DEXEN INDUSTRIES INC

Attorney/Law Firm Details

Petitioner and Plaintiff Attorneys

MCCANN SHAWN J.

BANAFSHEH DANESH & JAVID PC

YARNALL DELORES A.

KLEIN BETH ANN

Defendant and Respondent Attorneys

WOLFE & WYMAN LLP

WYMAN SAMUEL ARNOLD

REINHOLTZ JACK RUSSELL

 

Court Documents

ORDER FOR REMAND

12/21/2017: ORDER FOR REMAND

Unknown

12/21/2017: Unknown

ORDER FOR REMAND

12/21/2017: ORDER FOR REMAND

Minute Order

1/12/2018: Minute Order

Notice

1/24/2018: Notice

DEFENDANT RH PETERSON CO., A CALIFORNIA CORPORATION'S ANSWER TO PLAINTIFFS' COMPLAINT

2/20/2018: DEFENDANT RH PETERSON CO., A CALIFORNIA CORPORATION'S ANSWER TO PLAINTIFFS' COMPLAINT

DEFENDANT R.H. PETERSON CO'S DEMAND FOR JURY TRIAL & NOTICE OF POSTING JURY FEES

2/20/2018: DEFENDANT R.H. PETERSON CO'S DEMAND FOR JURY TRIAL & NOTICE OF POSTING JURY FEES

Unknown

2/20/2018: Unknown

Unknown

9/19/2018: Unknown

Amendment to Complaint (Fictitious/Incorrect Name)

11/28/2018: Amendment to Complaint (Fictitious/Incorrect Name)

Answer

1/23/2019: Answer

Motion to Dismiss

1/28/2019: Motion to Dismiss

Disassociation of Attorney

1/29/2019: Disassociation of Attorney

Notice of Appearance

2/4/2019: Notice of Appearance

Unknown

2/4/2019: Unknown

Minute Order

2/8/2019: Minute Order

Ex Parte Application

2/8/2019: Ex Parte Application

Notice of Ruling

2/11/2019: Notice of Ruling

28 More Documents Available

 

Docket Entries

  • 04/29/2019
  • DocketNotice (Notice of Errata re Declaration of Cynthia Palin re Motion to Dismiss); Filed by Dexen Industries, Inc (Defendant)

    [+] Read More [-] Read Less
  • 04/17/2019
  • Docketat 08:30 AM in Department J, Gloria White-Brown, Presiding; Case Management Conference - Held

    [+] Read More [-] Read Less
  • 04/17/2019
  • Docketat 08:30 AM in Department 4A, Christopher K. Lui, Presiding; Jury Trial - Not Held - Advanced and Continued - by Court

    [+] Read More [-] Read Less
  • 04/17/2019
  • DocketMinute Order ( (Case Management Conference)); Filed by Clerk

    [+] Read More [-] Read Less
  • 04/05/2019
  • DocketNotice of Deposit - Jury; Filed by Dexen Industries, Inc (Defendant)

    [+] Read More [-] Read Less
  • 04/05/2019
  • DocketCase Management Statement; Filed by Dexen Industries, Inc (Defendant)

    [+] Read More [-] Read Less
  • 04/03/2019
  • DocketNotice of Intent to Appear by Telephone; Filed by Howard George Draper (Plaintiff); Karen Draper (Plaintiff)

    [+] Read More [-] Read Less
  • 04/02/2019
  • Docketat 10:00 AM in Department 4A, Christopher K. Lui, Presiding; Final Status Conference - Not Held - Advanced and Continued - by Court

    [+] Read More [-] Read Less
  • 04/02/2019
  • DocketCase Management Statement; Filed by Howard George Draper (Plaintiff); Karen Draper (Plaintiff)

    [+] Read More [-] Read Less
  • 03/29/2019
  • DocketCase Management Statement; Filed by R.H. Peterson Co (Defendant)

    [+] Read More [-] Read Less
39 More Docket Entries
  • 11/30/2017
  • DocketMinute order entered: 2017-11-30 00:00:00; Filed by Clerk

    [+] Read More [-] Read Less
  • 11/20/2017
  • DocketNOTICE TO ADVERSE PARTY OF REMOVAL TO FEDERAL COURT

    [+] Read More [-] Read Less
  • 11/20/2017
  • DocketNotice of Removal to Federal Court; Filed by R.H. Peterson Co (Defendant)

    [+] Read More [-] Read Less
  • 10/24/2017
  • DocketProof-Service/Summons; Filed by Howard George Draper (Plaintiff); Karen Draper (Plaintiff)

    [+] Read More [-] Read Less
  • 10/24/2017
  • DocketPROOF OF SERVICE SUMMONS

    [+] Read More [-] Read Less
  • 10/17/2017
  • DocketCOMPLAINT FOR DAMAGES DEMAND FOR JURY TRIAL

    [+] Read More [-] Read Less
  • 10/17/2017
  • DocketComplaint; Filed by Howard George Draper (Plaintiff); Karen Draper (Plaintiff)

    [+] Read More [-] Read Less
  • 10/17/2017
  • DocketCIVIL DEPOSIT

    [+] Read More [-] Read Less
  • 10/17/2017
  • DocketPLAINTIFFS ' NOTICE OF POSTING JURY FEES

    [+] Read More [-] Read Less
  • 10/17/2017
  • DocketSUMMONS

    [+] Read More [-] Read Less

Tentative Rulings

b'

Case Number: ****0137 Hearing Date: October 5, 2021 Dept: R

Draper v. Dexen Industries, Inc., et al. (21STCV11089; R/T Case No. ****0137)

Defendants Dexen Industries, Inc.’s, Yu-Shan Teng’s, Joslyn Teng’s and R.H. Peterson Co.’s DEMURRER TO PLAINTIFFS’ COMPLAINT

Responding Party: Plaintiffs, Karen Draper and Howard George Draper

Tentative Ruling

Defendants Dexen Industries, Inc.’s, Yu-Shan Teng’s, Joslyn Teng’s and R.H. Peterson Co.’s Demurrer to Plaintiffs’ Complaint is OVERRULED.

Background

Case No. ****0137

Plaintiffs Karen Draper (“Karen”) and Howard George Draper (“Howard”) (collectively, “Plaintiffs”) allege as follows: On October 20, 2015, Karen sustained injuries after attempting to light a FireMagic Regal II Built in Grill. On October 17, 2017, Plaintiffs filed a complaint, asserting causes of action against Defendants R.H. Peterson Co. (“RH Peterson”) and Does 1-30 for:

1. Strict Liability—Manufacturing Defect

2. Strict Liability—Design Defect

3. Strict Liability—Failure to Warn

4. Implied Warranty of Merchantability

5. Negligence

6. Negligence—Duty to Warn

On November 20, 2017, RH Peterson filed its “Notice to Adverse Party of Removal to Federal Court.” On December 21, 2017, an Order of Remand was filed. On November 28, 2018, Plaintiffs filed an Amendment to Complaint, wherein Dexen Industries, Inc. (“Dexen”) was named in lieu of Doe 1.

On March 13, 2019, this action was transferred from Department 4A of the Personal Injury Court to this department.

On January 16, 2020, an Order was filed, wherein Plaintiffs’ case was dismissed. On January 30, 2020, Plaintiffs filed a “Notice of Appeal.”

On May 6, 2021, the court deemed Case Nos. ****0137 and 21STCV11089 related and deemed Case No. ****0137 the lead case.

Case No. 21STCV11089

Plaintiffs allege as follows: On October 20, 2015, a defective gas valve “safety timer” component (“Timer”) caused an explosion that resulted in the double amputation of Karen’s lower legs. Defendants Dexen, RH Peterson, Hwei Keh Enterprise Co., Ltd., Yu-Shan Teng and Joslyn Teng (collectively, “Defendants”) marketed the Timer as a safety device, knowing that the Timer did not always shut off gas as they had represented it would.

On March 22, 2021, Plaintiffs filed a complaint, asserting causes of action against Defendants and Does 1-30 for:

1. Consumer Fraud

2. Violation of Business & Professions Code ; 17200

3. Violation of Business & Professions Code ; 17500

4. Strict Products Liability

5. Negligent Products Liability

6. General Negligence

Again, on May 6, 2021, the court deemed Case Nos. ****0137 and 21STCV11089 related and deemed Case No. ****0137 the lead case.

A Case Management Conference is set for October 5, 2021.

Legal Standard

A demurrer may be made on the grounds that, inter alia, the pleading does not state facts sufficient to constitute a cause of action and/or that the pleading is uncertain. (Code Civ. Proc., ; 430.10, subds. (e) and (f).)

When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905 [citations omitted].) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) “[A] demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction placed on an instrument pleaded therein, or facts impossible in law, or allegations contrary to facts of which a court may take judicial knowledge.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [citations omitted].)

“A demurrer on the ground of the bar of the statute of limitations will not lie where the action may be, but is not necessarily, barred.” (Moseley v. Abrams (1985) 170 Cal.App.3d 355, 359-360.) “It must appear clearly and affirmatively that, upon the face of the complaint, the right of action is necessarily barred.” (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 881.)

Discussion

Dexen, Yu-Shan Teng (“Y. Teng”), Joslyn Teng (“J. Teng”) and RH Peterson (“Defendants”) demur, per Code of Civil Procedure ; 430.10, subdivision (e), to Plaintiff’s complaint, on the basis that it fails to state facts sufficient to constitute causes of action and is uncertain.

Request for Judicial Notice

The court rules on Defendants’ Request for Judicial Notice (“RJN”) as follows: Granted as to Exhibit A (i.e., complaint filed October 17, 2017 in case styled Draper v. R.H. Peterson Co., Case No. ****0137 [“First Action”]); Granted as to Exhibit B (i.e., Amendment to Complaint filed November 28, 2018 in the First Action); Granted as to Exhibit C (i.e., August 26, 2019 tentative ruling in the First Action [adopted as final on September 5, 2019]); Granted as to Exhibit D (i.e., Order filed January 16, 2020 in the First Action); Granted as to Exhibit E (i.e., Plaintiffs’ complaint filed in case styled Draper v. R.H. Peterson Co., et al., Case No. 2019CV30103 [“Colorado Action”] and Granted as to Exhibit F (i.e., Plaintiffs’ Request for Case Management Conference and Drafted Disputed Case Management Order filed June 25, 2021 in case styled Draper v. R.H. Peterson Co., et al., Case No. 19CV30103 [the “Colorado Action”].)

The court rules on Plaintiffs’ RJN as follows: Granted as to Exhibit 1 (i.e., complaint filed March 22, 2021 in the instant action); Denied as to Exhibits 2-4 and 6-9 (i.e., Pages from the appellate record in the First Action); Denied as to Exhibit 5 (i.e., copies of recent Amazon customer complaints, filed as an Exhibit in the Colorado discovery dispute filings); Granted as to Exhibit 10 (i.e., Plaintiffs’ “Appellant’s Opening Brief” in the appeal taken in the First Action); Granted as to Exhibit 11 (i.e., RHP/Dexen’s “Respondents’ Brief” in the appeal taken in the First Action) and Denied as to Exhibit 12 (i.e., Plaintiffs’ “Appellants’ Reply Brief” in the appeal taken in the First Action.)

The court rules on Defendants’ Reply RJN as follows: Granted as to Exhibit G (i.e., State of California Secretary of State Statement of Information filed March 28, 2011 for Dexen Industries, Inc.) and Denied as to Exhibit H (i.e., Klein v. Tiburon Development LLC (Colo. Appl. 2017) 405 P.3d 470.)

Evidentiary Objections

The court rules on Defendants’ objection to the Declaration of Delores Yarnell as follows: Sustained. The court declines to rule on Defendants’ objections to Plaintiff’s RJN as moot, based upon the above ruling on Plaintiff’s RJN.

Merits

Defendants first contend that Plaintiffs’ complaint (i.e., filed on March 22, 2021) is time-barred because it was filed more than five years after the underlying incident (i.e., October 20, 2015) (TAC, ¶ 1) and the delayed discovery rule does not apply. “Where a complaint shows on its face that the cause of action is apparently barred, plaintiff must plead facts showing a ground for suspension, delayed accrual, or application of another theory for avoidance of the statute.” (County of Alameda v. Superior Court (1987) 195 Cal.App.3d 1283, 1286.) A plaintiff who relies on delayed discovery rule “must plead facts justifying delayed accrual; the complaint must allege (1) the time and manner of discovery and (2) the circumstances excusing delayed discovery.” (Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 1150 [quotation marks and citation omitted].)

Defendants fail to distinguish between the causes of action or Defendants. Defendants cite to only one paragraph from the complaint (¶ 101) as if it supplies the only relevant “discovery rule” allegations; in doing so, Defendants fail to address the adequacy of Plaintiffs’ allegations in ¶¶ 1, 2, 16, 37-39, 44, 46-49, 70, 100 and 105. Defendants’ demurrer also fails to address the sufficiency of Plaintiff’s allegations regarding concealment, estoppel and continuing wrongs as exceptions to the statute of limitations.

Defendants next contend that “[t]he doctrine of issue preclusion will bar Plaintiffs’ [complaint] once the Court of Appeal renders its decision in the First Action.” (Demurrer, 16:18-19.) This argument, which utilizes the future tense, is obviously premature and is rejected.

Defendants’ demurrer is overruled.'


Case Number: ****0137    Hearing Date: January 07, 2020    Dept: J

HEARING DATE: Tues., Jan. 7, 2020

NOTICE: OK

RE: Draper, et al. v. R.H. Peterson Co., et al. (****0137)

______________________________________________________________________________

 

Plaintiffs Karen Draper’s and Howard George Draper’s MOTION TO VACATE ORDERS AND MOTION FOR “NEW TRIAL”

Responding Party: Defendants R.H. Peterson Co. and Dexen Industries, Inc.

Tentative Ruling

Plaintiffs’ MOTION FOR NEW TRIAL is DENIED.

Plaintiffs’ MOTION TO VACATE ORDERS is DENIED.

Background

Plaintiffs Karen Draper and Howard George Draper allege Karen lost both legs from an explosion caused in attempting to light a BBQ grill that was designed, manufactured, or assembled by Defendants R.H. Peterson Co. and Dexen Industries, Inc.

On September 5, 2019, the court granted Defendant R.H. Peterson Co.’s motion to dismiss based on forum non conveniens. On September 23, 2019, the court granted Defendant Dexen Industries, Inc.’s motion to dismiss based on forum non conveniens.

On October 31, 2019, Plaintiffs filed these motions. Dexen filed an opposition on December 18, 2019. R.H. Peterson filed an opposition on December 23, 2019. On December 30, 2019, Plaintiff filed a reply.

There are no other hearings set in this case.

Legal Standard

“A new trial is a re-examination of an issue of fact in the same court after a trial and decision by a jury, court, or referee.” (Code Civ. Proc., ; 656.) Based upon specified reasons, “[t]he verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved….” (Code Civ. Proc., ; 657.)

“The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc., ; 473(b).)

“The court may…, on motion of either party after notice to the other party, set aside any void judgment or order.” (Code Civ. Proc., ; 473(d).) An order may be vacated based on fraud when a party is “deprived of his opportunity to present his claim” because he or she “was kept in ignorance or in some other manner fraudulently prevented” from fully presenting the true facts at a proceeding. (In re Marriage of Melton (1994) 28 Cal.App.4th 931, 937.)

Discussion

Procedure – Orders Granting Motions to Dismiss

Both parties address issues related to whether the orders granting Defendants’ motions to dismiss have been properly signed by the court.

“All dismissals ordered by the Court shall be in the form of a written order signed by the court and filed in the action….” (Code Civ. Proc., ; 581d.) It is undisputed by the parties that an unsigned minute order does not qualify as a dismissal. (See e.g., Daniels v. Robbins (2010) 182 Cal.App.4th 204, 229.)

Here, the court issued minute orders on September 5 and 23, 2019 granting R.H. Peterson’s and Dexen’s motions to dismiss, respectively. In those minute orders, the court stated its findings were reflected in the court’s tentative ruling issued on September 5, 2019. None of these documents (minute orders or tentative ruling) are signed by the court. Thus, the minute orders and tentative ruling do not constitute a proper dismissal order under section 581d because they are not signed by the court.

On the one hand, Plaintiffs, based on the foregoing, conclude no time limits yet apply to their motion. Defendants do not dispute the motion is timely filed.

On the other hand, Defendant R.H. Peterson requests that the court sign the minute orders dated September 5 and 23, 2019, and Defendant Dexen requests the court issue new orders of dismissal effective September 3, 2019 on a nunc pro tunc basis, based on the case Brehm v. 21st Century Ins. Co. (2008) 166 Cal.App.4th 1225.

No party appears to address the fact that the court has signed an order granting R.H. Peterson’s motion to dismiss. (Order, filed 9/23/19.) This order complies with section 581d because it is a written dismissal order signed by the court and filed in the action. Further, the 9/23/19 signed order appears sufficient from a substantive point of view. (See Cal-State Business Products & Services, Inc. v. Ricoh (1993) 12 Cal.App.4th 1666, 1676 [“there is no requirement that the trial court make any express ruling on a motion to stay/dismiss.”].)

Based on the foregoing, the court declines to sign the minute orders and declines to enter an orders on a nunc pro tunc basis. Instead, Defendant Dexen is to lodge a proposed order, as Defendant R.H. Peterson apparently did, for the court’s signature and filing.

Procedure – Timeliness of Opposition

In reply, Plaintiff contend the court should consider the Defendants’ opposition papers because they were not filed timely under CCP section 659a, which requires opposition papers to be filed 10 days after the motion papers are filed and served. Here, the opposition papers more than 10 days after the motion papers were filed, but they were filed timely per CCP section 1005(b).

The court is inclined to find the timeliness of Defendants’ opposition papers to Plaintiff’s request for a new trial (and request to set aside and vacate a judgment under CCP sections 663 and 663a) is a moot issue because, as discussed immediately below, such requests are premature because the court has not rendered a decision, as defined in the context of a motion for new trial.

Motion for New Trial

“A new trial is defined as ‘a re-examination of an issue of fact in the same court after a trial and decision by a jury, court, or referee.’ (Code Civ. Proc. ; 656.) Under section 657 of the Code of Civil Procedure a ‘verdict may be vacated and any other decision may be modified or vacated’ upon application for a new trial made by any ‘party aggrieved.’ Until there has been a decision there is no aggrieved party.” (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 458-459.) “In a case tried by the court alone the decision is rendered only when the court signs and files its findings of fact and conclusions of law. [citations] This being so, it has been repeatedly held that a notice of intention to move for a new trial filed before the court has signed and filed its findings and conclusions is ‘premature’ and therefore void.” (Id. at 459; see also Ruiz v. Ruiz (1980) 104 Cal.App.3d 374, 378.)

The court determines the motion for new trial is premature because the court has not signed and filed its findings of fact and conclusions of law, related to the motions to dismiss. Rather, the minute orders from September 5 and 23, 2019 merely state the court adopts its tentative order, but the neither the minute orders nor tentative ruling is signed. Further, although the court signed and filed on 9/23/19 an order granting R.H. Peterson’s motion to dismiss, the order did not contain any factual findings. Under these circumstances, the court has not signed and filed its findings and conclusions, and therefore, no decision has been rendered. Thus, the motion for new trial is void as premature.

“[S]ections 657 and 660…impose limitations and requirements on consideration of motions for new trials. The power of the trial court to grant a new trial may be exercised only by following the statutory procedure and is conditioned upon the timely filing of a motion for new trial, the court being without power to order a new trial sua sponte.” (Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892, 899.) As there is no “decision”, there is no “aggrieved party”, and therefore, the statutory procedure under section 657 has not been met. It follows the court is without power to order a new trial.

Accordingly, the motion for new trial is DENIED without prejudice. This ruling also applies to a motion to set aside and vacate a judgment under CCP sections 663 and 663a because the statutes requires a “decision”, and as discussed above, the court has not rendered a decision yet. (See CCP ;; 663a(a); 663 [“A judgment or decree, when based upon a decision by the court, or the special verdict of a jury, may, upon motion of the party aggrieved, be set aside and vacated by the same court….”, emphasis added.)

Assuming the court files and signs an order including its findings of fact and conclusions of law, related to the motions to dismiss, the court would determine the motion for new trial has some application to challenging a granted motion to dismiss based on forum non conveniens.

“An order granting summary judgment is properly challenged by a motion for a new trial. [citation] ‘This is so, even though, strictly speaking, ‘summary judgment ... is a determination that there shall be no trial at all.’’ [citation] The new trial motion may seek reversal of the summary judgment on the ground that there are triable issues of fact. [citation] In addition, the motion may assert that the summary judgment should be reversed because there is ‘[n]ewly discovered evidence’ [citations.]” (Doe v. United Air Lines, Inc. (2008) 160 Cal.App.4th 1500, 1504-1505.)

Based on the foregoing, the court would treat this motion for new trial similarly to a motion for new trial challenging a granted summary judgment motion, and therefore, the motions to dismiss may be reversed if there is newly discovered evidence. Thus, the applicable grounds for new trial under these circumstances are newly discovered evidence (CCP ; 657(4)) and surprise (CCP ; 657(3)).

Plaintiffs’ motion brings the court’s attention to two new facts. First, Defendants have asserted a statute of limitations defense in the Colorado court, even though they represented to the court that they would not. (Yarnall Decl. ¶ 32.) The court agrees that this representation is reflected in the court’s adopted tentative orders. (See Tentative Ruling [R.H. Peterson Co.], p. 5 [“RH Peterson and Dexen, moreover, have both agreed to waive any statute of limitations defense related to the timeliness of Plaintiffs’ filing of their complaint so that Plaintiffs can re-file in Colorado, (Hunter Decl., 1140; Bortz Decl., 112; Palin Decl., 112, Exh. A, 112.)”].) Thus, this representation was material to the court’s ruling—in particular, material to the court’s finding that Colorado was a suitable forum. Second, Defendants have failed to file cross-complaints against other necessary defendants, despite indicating to the court they would file those cross-complaints. While Defendants argued keeping the case in California would prevent them from filing cross-complaints against other parties, Defendants did not affirmatively represent to the court they would file such cross-complaints in a Colorado forum. Further, the discussion regarding cross-complaints was not material to the court’s ruling. (See Tentative Ruling [R.H. Peterson Co.], p. 6 [“However, ‘it is inappropriate to shift the forum based upon the fact that respondent may join others when it has not taken any steps to do so.’ (Corrigan v. Bjork Shiley Corp. (1986) 182 Cal.App.3d 166, 183 (disapproved on other grounds in Stangvik, supra, 54 Cal.3d at 764].) Regardless, the court determines that the other considerations, articulated above, weigh in favor of litigating this case in Colorado.”] some emphasis added.) Thus, the second new fact is not material.

In opposition, Defendants contend the purported “new facts” are moot. As to the statute of limitations, Defendants assert they amended their answers which do not include an affirmative defense for statute of limitations. (RH Opp., Hunter Decl. ¶ 15; Dexen Opp., RJN, Exh. F [amended answer] ¶ 45.) As to cross-complaints, Defendants have filed third party complaints. (RH Opp., RJN, Exh. J; Dexen Opp., RJN, Exh K.)

Thus, the court finds the purported “new facts” are moot.

To the extent Defendants improperly used an alleged statute of limitations affirmative defense to obtain federal jurisdiction, the propriety of the removal is not within the scope of this motion, and Plaintiffs have not shown such an issue bears on whether to vacate the orders granting the motions to dismiss.

Therefore, even if the court considered the motion for new trial (after the court signs and files its findings of fact and conclusions of law), there is no basis to grant a new trial on newly discovered evidence or surprise.

Plaintiffs also request a new trial based on insufficient evidence to justify decision/decision against law and error in law. (CCP ; 657(6), (7).) The court notes Plaintiffs conducts no analysis showing these specific grounds are met.

Under section 657(6), a judge may grant a new trial based on the insufficiency of the evidence to justify the verdict or other decision, but only if, after weighing the evidence, the judge is convinced from the entire record, including reasonable inferences, that the jury clearly should have reached a different verdict or decision. (Buckner v Milwaukee Elec. Tool Corp. (2013) 222 Cal.App.4th 522, 530–532.) Further, under section 657(6), a verdict is against the law if the evidence was legally insufficient to sustain the plaintiff’s claim and the entire record would justify a directed verdict against the parties in whose favor the verdict was returned. (Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892, 906.)

Under section 657(7), a judge may grant a new trial based on an error in law that occurred at the trial and that was objected to by the party moving for a new trial. (Tun v Wells Fargo Dealer Servs., Inc. (2016) 5 Cal.App.5th 309, 323.) A new trial on this ground is warranted when the case was resolved by a ruling that was erroneous as a matter of law. (Cassady v Morgan, Lewis & Bockius LLP (2006) 145 Cal.App.4th 220, 229; see e.g., Mangano v. Verity, Inc. (2009) 179 Cal.App.4th 217 [holding that judge properly denied plaintiff's motion for new trial based on plaintiff's claim that judge erroneously granted defendant's in limine motions; judge properly granted these in limine motions].)

Plaintiffs offer the following arguments. First, Plaintiffs contend all of Defendants’ wrongful conduct occurred in California and contend California has a policy of keeping such cases in this state. (Mot. 10:15.) However, Plaintiffs do not state how or why these contentions satisfy any ground for new trial, specifically insufficient evidence to justify decision, decision against law, or error of law. Plaintiffs have not shown that from the entire record, including reasonable inferences, the court clearly should have reached a different decision on the private interest factors. Also, Plaintiffs have not shown this determination was erroneous as a matter of law.

Second, Plaintiffs contend the motion should have been denied because Defendants availed themselves of substantial discovery before the motions to dismiss were filed. (Mot. 11:4.) Again, no argument is provided how this meets the standards under section 657(6), (7). In any event, the court expressly considered this argument in the adopted tentative ruling in R.H. Peterson’s motion. The court determined the motion was not barred, despite Defendants’ discovery activities. Plaintiffs have not shown this determination was erroneous as a matter of law.

Third, Plaintiffs contend they should Defendants’ employees and officers reside in California. (Mot. 11:24.) This argument relates to the private interests factor in the balancing test on a motion to dismiss based on forum non conveniens. The court expressly considered the private interest factors in the balancing test and determined the evidence as a whole leaned toward choosing Colorado as the proper forum. Plaintiffs have not shown that from the entire record, including reasonable inferences, the court clearly should have reached a different decision on the private interest factors.

Based on the foregoing, Plaintiffs fail to articulate grounds for a new trial under section 657(6), (7).

The other grounds for new trial not mentioned above (i.e., CCP ; 657(1)[irregularity of proceedings], (2)[jury misconduct], and (5)[excessive damages]) have not been shown to be applicable under these circumstances.

Accordingly, the motion for new trial would be DENIED.

Motion to Set Aside under CCP section 473(b)

“The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc., ; 473(b).)

Here, Plaintiffs were surprised that (1) Defendants presented false evidence in order to win the motions to dismiss and (2) the court dismissed the case after granting the motions, instead of staying the case with conditions. (Mot. 17:4-15.)

Defendants have eliminated the statute of limitations affirmative defense from their answers in the Colorado forum and have filed third party complaints, and thus, the argument that Defendants presented false evidence is moot. (RH Opp., Hunter Decl. ¶ 15 [amended answer]; Dexen Opp., RJN, Exh. F [amended answer] ¶ 45; RH Opp., RJN, Exh. J [third-party complaint]; Dexen Opp., RJN, Exh K [third-party complaint.) Also, the court’s decision to dismiss, rather than stay, the case is not sufficient grounds for surprise because the applicable statute for the motion to dismiss expressly authorizes the court to “dismiss” the case. (See Code Civ. Proc., ; 418.10(a)(2) [“A defendant…may serve and file a notice of motion…[t]o stay or dismiss the action on the ground of inconvenient forum.”] emphasis added.)

The court is inclined to find that Plaintiffs have not sufficiently shown the orders were taken against them through their mistake, inadvertence, surprise, or excusable neglect.

Thus, the motion based on section 473(b) is denied.

Motion to Void Judgment under CCP section 473(d)

Plaintiffs appear to contend Defendants’ purported misrepresentations regarding the waiver statute of limitations affirmative defense and the filing of cross-complaints against other defendants constitutes extrinsic fraud, and thus, the court should vacate the orders granting the motions to dismiss because the court relied on those misrepresentations in granting the motions.

“The court may…, on motion of either party after notice to the other party, set aside any void judgment or order.” (Code Civ. Proc., ; 473(d).)

A court may set aside an order based on extrinsic fraud. (In re Marriage of Melton (1994) 28 Cal.App.4th 931, 937.) “Extrinsic fraud occurs when a party is deprived of his opportunity to present his claim or defense to the court, where he was kept in ignorance or in some other manner fraudulently prevented from fully participating in the proceeding. [citation] Examples of extrinsic fraud are: concealment of the existence of a community property asset, failure to give notice of the action to the other party, convincing the other party not to obtain counsel because the matter will not proceed (and it does proceed).” (Ibid.)

As discussed above, the purported misrepresentations based on the statute of limitations affirmative defense and cross-complaints have been resolved. Plaintiffs present no other evidence supporting a theory of extrinsic fraud.

Thus, the court finds no basis to set aside or vacate the orders granting the motions to dismiss based on extrinsic fraud.



related-case-search

Dig Deeper

Get Deeper Insights on Court Cases


Latest cases where Dexen Industries, Inc. is a litigant

Latest cases where R. H. PETERSON CO. DBA FIRE MAGIC A CALIFORNIA CORPORATION. is a litigant

Latest cases represented by Lawyer YARNALL DELORES A. ESQ.