Cioban-Leontiy v. Silverthorn Resort Associates, LP et al

Filing 137

ORDER signed by District Judge Morrison C. England, Jr. on 06/05/19 GRANTING 136 Stipulation striking portions and to clarify portions of plaintiff's Third Amended Complaint. (Benson, A.)

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COLLEEN A. DÉZIEL (Bar No. 164282)
[e-mail]
DAVID R. HUNT (Bar No. 110675)
[e-mail]
DAVID J. BILLINGS (Bar No. 175383)
[e-mail]
ANDERSON, McPHARLIN & CONNERS LLP
707 Wilshire Boulevard, Suite 4000
Los Angeles, California 90017-3623
TELEPHONE: [phone] ⧫ FACSIMILE: [phone]

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Attorneys for Defendant/Cross7 Claimant/Cross-Defendant
SILVERTHORN RESORT
8 ASSOCIATES, LP
UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA, SACRAMENTO DIVISION

LOS ANGELES, CALIFORNIA 90017-3623

TEL [phone] • FAX [phone]

LAWYERS

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707 WILSHIRE BOULEVARD, SUITE 4000

ANDERSON, MCPHARLIN & CONNERS LLP

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12 OLGA CIOBAN-LEONTIY,
Plaintiff,

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vs.

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15 SILVERTHORN RESORT
ASSOCIATES, LP, a California
16 Limited Partnership, WATERWAY
HOUSEBOAT BUILDERS, a foreign
17 corporation, VOLVO PENTA OF THE
AMERICAS, LLC, a Delaware Limited
18 Liability Company, and DOES 1
through 50, inclusive,
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Defendants.
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Case No. 2:17-cv-01626-MCE-DMC
ORDER ON STIPULATION TO
STRIKE PORTIONS AND TO
CLARIFY PORTIONS OF
PLAINTIFF’S THIRD AMENDED
COMPLAINT
Trial Date:

None

21 AND RELATED CROSS-ACTIONS.
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The Court having reviewed and considered the Parties’ STIPULATION TO

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24 STRIKE AND TO CLARIFY PORTIONS OF PLAINTIFF’S THIRD AMENDED
25 COMPLAINT, and good cause appearing therefore,
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IT IS HEREBY ORDERED as follows:

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1.

The stipulation of the parties is accepted.

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2016173.1 05896-051

ORDER ON STIPULATION STRIKE PORTIONS AND TO CLARIFY PORTIONS OF PLAINTIFF’S THIRD
AMENDED COMPLAINT

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2.

The following portions of Plaintiff’s Third Amended Complaint

2 (“TAC”) as identified by the struck through language below are stricken from the
3 TAC:
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a.

¶ 31, p. 7:14: “was defective in design, inspection, service,

repair, marketing and/or modification”; and

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b.

¶46, p. 11:7-9 : “to design, test, develop[,] manufacture,

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fabricate, assemble, distribute, warn, instruct, buy, sell, inspect, service,

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repair, market, warrant, lease, supply, modify, and/or provide the SUBJECT

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VESSEL, in a condition that was safe for its intended use.”
3.

The allegations set out in ¶33, at p. 7:26 – 28:1 that the SUBJECT

LOS ANGELES, CALIFORNIA 90017-3623

TEL [phone] • FAX [phone]

LAWYERS

11 VESSEL was “generally defective in its marketing, leasing, and visible warnings

707 WILSHIRE BOULEVARD, SUITE 4000

ANDERSON, MCPHARLIN & CONNERS LLP

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12 because it failed to protect foreseeable users of the SUBJECT VESSEL, as well as
13 bystanders, from injurious contact with the vessel’s propeller when in the water in
14 the vicinity of the aft of the vessel and its propeller” are limited to “marketing,
15 leasing, and visible warnings” and shall not be interpreted to raise issues of physical
16 prevention of people coming into contact with the propeller by the use of a propeller
17 guard, ladder interlock devise, or other such instrumentality, and Plaintiff has
18 waived pursuit of such theories against SILVERTHORN.
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4.

SILVERTHORN, having waived its right to challenge the TAC

20 through a motion to dismiss or a motion to strike portions of its allegations, shall;
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(1)

Answer the TAC and file a cross-claim against cross-defendants

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Dmitry Gaiduchik and Maxim Leontiy only, dropping cross-defendant Volvo

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Penta of the Americas, LLC, a Delaware Limited Liability Company from its

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cross-claim; and

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2016173.1 05896-051

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ORDER ON STIPULATION TO STRIKE PORTIONS AND TO CLARIFY PORTIONS OF PLAINTIFF’S THIRD
AMENDED COMPLAINT

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(2)

File its answer and cross-claim on or before ten days from the

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date notice is given by the Court that this stipulation has been accepted and

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made an order of the Court.

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IT IS SO ORDERED.

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6 Dated: June 5, 2019
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LOS ANGELES, CALIFORNIA 90017-3623

TEL [phone] • FAX [phone]

LAWYERS

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707 WILSHIRE BOULEVARD, SUITE 4000

ANDERSON, MCPHARLIN & CONNERS LLP

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2016173.1 05896-051

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ORDER ON STIPULATION TO STRIKE PORTIONS AND TO CLARIFY PORTIONS OF PLAINTIFF’S THIRD
AMENDED COMPLAINT