This case was last updated from Los Angeles County Superior Courts on 11/26/2019 at 16:20:40 (UTC).

WILLIAM DWIGHT TOUCHBERRY ET AL VS DOES 1 TO 250

Case Summary

On 02/13/2018 WILLIAM DWIGHT TOUCHBERRY filed an Other - Environment lawsuit against DOES 1 TO 250. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is RAFAEL A. ONGKEKO. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****3844

  • Filing Date:

    02/13/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Other - Environment

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

RAFAEL A. ONGKEKO

 

Party Details

Plaintiffs and Petitioners

TOUCHBERRY LAURIE

TOUCHBERRY WILLIAM DWIGHT

Defendants and Respondents

DOES 1 TO 250

GPC INTERNATIONAL INC. DOE 3

RUST-OLEUM CORPORATION DOE 6

THE SHERWIN-WILLIAMS COMPANY AS SUCCESSOR BY ACQUISITION TO KRYLON PRODUCTS GROUP DOE 9

THE SHERWIN-WILLIAMS COMPANY AS SUCCESSOR BY ACQUISITION TO THE VALSPAR CORPORATION DOE 10

THE SHERWIN-WILLIAMS COMPANY DOE 8

CREATIVE ART MATERIALS LTD. DOE 2 FKA CREATIVE CHEMICAL SOLUTIONS LTD.

UNION RUBBER INC. DOE 12

RUST-OLEUM CORPORATION AS SUCCESSOR BY ACQUISITION TO THE TESTOR CORPORATION DOE 7

PACKAGING SERVICE CO. INC. DOE 5

MASTERCHEM INDUSTRIES LLC DOE 4

WALMART INC. DOE 13

3M COMPANY DOE 1

SUNNYSIDE CORPORATION DOE 11

WD-40 COMPANY DOE 14

BIC CORPORATION DOE 15

SIX ROBBLEES' INC. AS SUCCESSOR IN INTEREST TO UNION RUBBER CO. INC.

Attorney/Law Firm Details

Plaintiff, Petitioner and Defendant Attorneys

METZGER RAPHAEL ESQ.

WHELAN KEVIN E

QUINONES JOSHUA A

HURRELL THOMAS CHARLES

SULLIVAN KAREN MARGARET

MUENCH RICHARD A

TOBIN THOMAS J.

WOLENSKY GARY A

PATTERSON CHRISTOPHER SEAN

YOUSEFIAN ARMINEH

LAMOND CHRISTIAN F

BOOTH JASON M.

 

Court Documents

Association of Attorney

11/14/2019: Association of Attorney

Notice - NOTICE TO MEDICARE

10/30/2019: Notice - NOTICE TO MEDICARE

Minute Order - MINUTE ORDER (HEARING ON MOTION TO STRIKE (NOT ANTI-SLAPP) - WITHOUT DEMURR...)

6/19/2019: Minute Order - MINUTE ORDER (HEARING ON MOTION TO STRIKE (NOT ANTI-SLAPP) - WITHOUT DEMURR...)

Reply - REPLY REPLY TO OPPOSITION TO MOTION TO STRIKE PORTIONS OF PLAINTIFFS' COMPLAINT

6/12/2019: Reply - REPLY REPLY TO OPPOSITION TO MOTION TO STRIKE PORTIONS OF PLAINTIFFS' COMPLAINT

Case Management Statement

6/4/2019: Case Management Statement

Case Management Statement

6/5/2019: Case Management Statement

Opposition - OPPOSITION TO RUST-OLEUM MTS

6/6/2019: Opposition - OPPOSITION TO RUST-OLEUM MTS

Opposition - OPPOSITION TO SHERWIN WILLIAMS DEMURRER

6/6/2019: Opposition - OPPOSITION TO SHERWIN WILLIAMS DEMURRER

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore - ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE WESLEY CONCEPCION, CSR#13383

5/29/2019: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore - ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE WESLEY CONCEPCION, CSR#13383

Answer

5/8/2019: Answer

Case Management Statement

4/15/2019: Case Management Statement

Case Management Statement

4/15/2019: Case Management Statement

Declaration - DECLARATION OF KAREN M. SULLIVAN IN SUPPORT OF RUST OLEUM CORPORATIONS MOTION TO STRIKE PORTIONS OF PLAINTIFFS COMPLAINT

4/4/2019: Declaration - DECLARATION OF KAREN M. SULLIVAN IN SUPPORT OF RUST OLEUM CORPORATIONS MOTION TO STRIKE PORTIONS OF PLAINTIFFS COMPLAINT

Motion to Strike (not anti-SLAPP) - without Demurrer

4/4/2019: Motion to Strike (not anti-SLAPP) - without Demurrer

Notice of Appearance

4/5/2019: Notice of Appearance

Proof of Personal Service

3/21/2019: Proof of Personal Service

Proof of Personal Service

3/21/2019: Proof of Personal Service

Proof of Personal Service

3/21/2019: Proof of Personal Service

114 More Documents Available

 

Docket Entries

  • 06/08/2020
  • Hearing06/08/2020 at 08:30 AM in Department 73 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 05/26/2020
  • Hearing05/26/2020 at 08:30 AM in Department 73 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 11/18/2019
  • DocketNotice of Entry of Dismissal and Proof of Service; Filed by Laurie Touchberry (Plaintiff); William Dwight Touchberry (Plaintiff)

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  • 11/14/2019
  • DocketAssociation of Attorney; Filed by The Sherwin-Williams Company (DOE 8) (Defendant); The Sherwin-Williams Company, as successor by acquisition to Krylon Products Group (DOE 9) (Defendant); The Sherwin-Williams Company, as successor by acquisition to the Valspar Corporation (DOE 10) (Defend

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  • 11/12/2019
  • DocketRequest for Dismissal; Filed by Laurie Touchberry (Plaintiff); William Dwight Touchberry (Plaintiff)

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  • 10/30/2019
  • DocketNotice (TO EMPLOYER OF THIRD PARTY ACTION PURSUANT TO LABOR CODE 3853); Filed by Laurie Touchberry (Plaintiff); William Dwight Touchberry (Plaintiff)

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  • 10/30/2019
  • DocketNotice (Plaintiffs' Notice to Medi-Cal); Filed by Laurie Touchberry (Plaintiff); William Dwight Touchberry (Plaintiff)

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  • 10/30/2019
  • DocketNotice ( TO MEDICARE); Filed by Laurie Touchberry (Plaintiff); William Dwight Touchberry (Plaintiff)

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  • 10/11/2019
  • DocketAmendment to Complaint (Fictitious/Incorrect Name); Filed by Laurie Touchberry (Plaintiff); William Dwight Touchberry (Plaintiff)

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  • 09/27/2019
  • DocketAmendment to Complaint (Fictitious/Incorrect Name); Filed by Laurie Touchberry (Plaintiff); William Dwight Touchberry (Plaintiff)

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134 More Docket Entries
  • 03/12/2018
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE AND FURTHER CASE MANAGEMENT ORDER AND NOTICE FROM DEPT. 73

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  • 03/12/2018
  • DocketNotice of Case Management Conference; Filed by Laurie Touchberry (Plaintiff); William Dwight Touchberry (Plaintiff)

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  • 03/01/2018
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 03/01/2018
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 02/13/2018
  • DocketCOMPLAINT FOR TOXIC INJURIES ASSERTING CAUSES OF ACTION FOR: (1) NEGLIGENCE; ETC

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  • 02/13/2018
  • DocketPLAINTIFFS' INITIAL STATEMENT OF DAMAGES

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  • 02/13/2018
  • DocketCIVIL DEPOSIT

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  • 02/13/2018
  • DocketPLAINTIFFS' NOTICE OF POSTING JURY FEES

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  • 02/13/2018
  • DocketComplaint; Filed by Laurie Touchberry (Plaintiff); William Dwight Touchberry (Plaintiff)

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  • 02/13/2018
  • DocketSUMMONS

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Tentative Rulings

Case Number: BC693844    Hearing Date: February 04, 2020    Dept: 73

2/4/2020

Dept. 73

Rafael Ongkeko, Judge presiding

WILLIAM DWIGHT TOUCHBERRY, et al. v. DOES 1-250 (BC693844)

MOTION TO TRANSFER ACTION TO ORANGE COUNTY SUPERIOR COURT (filed 1/8/20)

Moving party/joining parties:

Defendant Rust-Oleum Corporation (individually and as successor-by-acquisition to the Testor Corporation), joined by Defendants Wal-Mart Inc.; Creative Art Materials; The Sherwin-Williams Company (individually and as successor by acquisition of both Krylon Products Group and Valspar Corporation); Masterchem Industries LLC; and Sunnyside Corp.

Opposing parties:

Plaintiffs William Dwight Touchberry and Laurie Touchberry

TENTATIVE RULING

Defendant’s motion to transfer is DENIED.

Defendants Wal-Mart, Union Rubber Inc., The Sherwin-Williams Company, Masterchem Industries LLC, and Sunnyside Corporation’s joinder requests are denied as MOOT.

DISCUSSION

Summary of Issues

The Rust-Oleum Corporation Defendant moves to transfer this action to Orange County arguing that the transfer will promote the convenience of witnesses and the ends of justice. (Code of Civil Procedure section 395(a) and 397(c)) Defendants listed above all move to join.

Analysis

1. Convenience of Witnesses

If a motion to change venue is based on the grounds set forth under CCP § 397, including the ground of convenience of witnesses, the motion must be made within a reasonable time after the answer is filed, which is a question left to the court’s discretion. (Buran Equipment Co., Inc. v. Superior Court (1987) 190 Cal.App.3d 1662, 1665; Cooney v. Cooney (1944) 25 Cal.2d 202, 208.)

An untimely motion should not be denied unless the relief is being pursued for dilatory purposes and the opposing party can show substantial prejudice. (See Willingham v. Pecora (1941) 44 Cal.App.2d 289, 295 [holding denial of motion was proper when motion was made four months after trial date was set and granting motion would have delayed trial by five months].)

Here, the following chronology is pertinent:

· On December 11, 2018, Plaintiffs amended their complaint to add the Rust-Oleum Corporation (individually and as successor-by-acquisition to the Testor Corporation) as Doe Defendants.

· On April 4, 2019, Rust Oleum appeared and moved to strike portions of the complaint.

· On July 24, 2019, Plaintiffs served Defendants with Touchberry’s special interrogatory responses. (See JC Chimoures Decl. ISO Motion [“Chimoures Decl.”], ¶ 4, Ex. C.)

· On November 22, 2019, Touchberry’s deposition was completed.

· On January 8, 2020, Defendants filed this motion.

Defendant argues its motion is timely because it was not until Touchberry’s deposition was completed on November 22, 2019 (less than 2 months before filing this motion), that Defendants were able to determine that venue was improper, i.e., Touchberry: (1) identified additional witnesses during his testimony; and (2) contradicted the discovery response regarding the location of other witnesses previously identified.

Defendant’s motion lacks merit.

First, Defendants learned the majority of witnesses’ names, addresses, and phone numbers in Touchberry’s July 24, 2019 special interrogatory responses. (See Chimoures Decl., ¶ 4, Ex. C.) Notably, the portions of the deposition testimony transcript produced do not show Plaintiff identified any additional witnesses that reside or work in Orange County. (See id., ¶ 5, Ex. D.)

Second, Touchberry’s deposition testimony only clarified that: (1) he worked for Matthew S. Hunter at an Orange County office (not Los Angeles); and (2) Creative Circle LLC is a staffing agency. (See Chimoures Decl., ¶ 5, Ex. D.) Defendant fails to explain why these two minimal details warrant its six-month delay in moving to change venues.

Lastly, trial is four months away. Transferring this action will undoubtedly delay trial and cause prejudice to Plaintiffs. Accordingly, Defendants’ motion to transfer the action to Orange County is denied as untimely.

2. Even if the Motion Were Timely, Defendants Fail to Establish the Transfer Will Promote the Convenience of Witnesses and Ends of Justice

A plaintiff’s choice of venue is presumed to be proper. (Buran Equipment Co. v. Superior Court (1987) 190 Cal.App.3d 1662, 1666.) The court has discretionary power to transfer the case to any other county “[w]hen the convenience of witnesses and the ends of justice would be promoted by the change.” (Code Civ. Proc., § 397(c).)

It is only the convenience of non-party witnesses that is important to the convenience analysis. Absent extraordinary circumstances, the parties’ convenience does not factor into the analysis, even if they were to testify. (Wrin v. Ohlandt (1931) 213 Cal. 158, 160.) Convenience of expert witnesses who may testify, but who had no personal knowledge of any facts in the case, is not a permissible consideration. (Ibid.)

The burden of proving both convenience of witnesses and ends of justice rests upon one seeking change of venue. (Edwards v. Pierson (1957) 156 Cal.App.2d 72, 74.) The moving party must submit declarations that show (1) the names of each witness expected to testify for both parties, (2) the substance of their expected testimony, (3) whether the witness has been deposed or has given a statement, (4) the reasons why it would be inconvenient for the witnesses to appear locally, and (5) the reasons why the ends of justice would be promoted by a transfer to a different county. (Juneau v. Juneau (1941) 45 Cal.App.2d 14, 15-16.) The declaration or affidavit should also show that the witnesses' proposed testimony is admissible, relevant, and material. (Peiser v. Mettler (1958) 50 Cal.2d 594.) The fact that the ends of justice would be served may be established by showing that transferring the case would avoid delay and court expenses and would save the witnesses time and expenses. (Pearson v. Superior Court, City and County of San Francisco (1962) 199 Cal.App.2d 69.)

A mere preponderance in the number of witnesses a party expects to produce will not necessarily determine the order to be made. (E.g., Minatta v. Crook (1959) 166 Cal.App.2d 750, 757; Harden v. Skinner and Hammond (1955) 130 Cal.App.2d 750, 754.) The convenience of witnesses whose testimony will be merely cumulative is entitled to little consideration. (See Corfee v. Southern California Edison Co. (1962) 202 Cal.App.2d 473, 477; International Inv. Co. v. Merola (1959) 175 Cal.App.2d 439, 446.)

Here, Defendants name 23 witnesses and list their last known addresses. (See Chimoures Decl., ¶ 6a-r, t-x.) Defendants purportedly obtained this information from Touchberry’s special interrogatory responses. (See id., ¶ 4, Ex. C.) However, seven of the 23 named witnesses are not actually identified in the special interrogatory responses, e.g., Leroy Lewis, Ray Baird, Drew Letendre, Allen Brew, Jill Kasinski, Nina Martin, Clair Markovsky. (Compare Chimoures Decl., ¶ 6d, m-r with id. ¶ 4, Ex. C, pp. 53-54.)

More importantly, despite having six months to reach out to the witnesses, Defendant has made no showing that the witnesses actually work in Orange County. All that is established is that, at some point in time, the named witnesses worked in Orange County. Without knowing the witnesses’ current addresses, the degree of inconvenience is speculative.

Even if the court overlooks the fact that the addresses are not current, it is unclear how much of the testimony will be cumulative. For instance, Defendant names 14 witnesses that will testify regarding Plaintiff’s work at Rieches Bard/Branding Business. (See Chimoures Decl., ¶ 6e-r.) Even though only one of the 14 witnesses listed was Plaintiff’s former supervisor, all the witnesses will purportedly testify regarding the same matter, i.e., product identification, exposure, work habits, and layout.

Similarly, the declaration names five of Touchberry’s medical providers who will testify regarding treatment and causation (and thus damages). (See id., ¶ 6t-x.) Without more specific information, the court can only speculate as to whether the testimony will be unnecessarily cumulative.

Defendant’s motion to transfer the action to Orange County is DENIED.

All joinder requests are also denied as MOOT.

Notice of ruling by Plaintiffs.