Philadelphia Indemnity Insurance Company v. Danco Builders
Filing
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ORDER granting 72 STIPULATION TO CONTINUE CUT-OFF DATES - Dispositive motions to be heard by 2/15/2017. Signed by Judge William H. Orrick on 11/16/2016. (jmdS, COURT STAFF) (Filed on 11/16/2016)
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STEPHEN N. COLE, ESQ. (State Bar. #53319)
scole@colenetlaw.com
THE COLE LAW FIRM
3410 Industrial Blvd., Suite 100
West Sacramento, CA 95619
Telephone: (916) 376-0486
Facsimile: (916) 376-0478
Attorneys for Plaintiff:
PHILADELPHIA INDEMNITY INSURANCE COMPANY
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GEORGE D. YARON, ESQ. (State Bar #96246)
gyaron@yaronlaw.com
D. DAVID STEELE, ESQ. (State Bar #171636)
dsteele@yaronlaw.com
YARON & ASSOCIATES
1300 Clay Street, Suite 800
Oakland, CA 94612
Telephone: (415) 658-2929
Facsimile: (415) 658-2930
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Attorneys for Defendant
DANCO BUILDERS
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN FRANCISCO DIVISION
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PHILADELPHIA INDEMNITY
INSURANCE COMPANY,
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Plaintiff,
CASE No. 15-cv-03945-WHO
STIPULATION; ORDER THEREON
vs.
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DANCO BUILDERS and DOES 1 to10,
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Defendants.
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AGREED MOTION AND STIPULATION TO CONTINUE EXPERT
DISCOVERY CUT-OFF DATES
NOW COME the parties, Plaintiff, PHILADELPHIA INDEMNITY INSURANCE
COMPANY, and Defendant, DANCO BUILDERS, by and through their attorneys, THE
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Stipulation; Order thereon
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COLE LAW FIRM and YARON & ASSOCIATES, move this Court, pursuant to Federal
Rules of Civil Procedure 6(b), for an extension of time to the expert witness discovery cut-off.
In support of this motion, the parties state and stipulate as follows:
1.
This negligence lawsuit arises out a fire at an apartment complex at Willow
Creek Family Apartments.
2.
The most recent Order was entered on September 27, 2016, upon agreement of
the parties, and consideration of this Court, and continued the Initial Expert Disclosure Date to
November 1, 2016 and the Expert Discovery Cut-off to December 1, 2016.
3.
Plaintiff served a Mediation Statement on DANCO on October 11, 2016. In that
statement, Plaintiff sets forth the allegation that the fire spread to the polyethylene deck boards
to other portions of the building, and spread throughout the attic due to a lack of the required
attic draft stops. DANCO contracted with the drywall subcontractor to install the gypsum draft
stops in the attic.
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The parties participated in a Mediation before Michael G. Ornstil at JAMS on
October 18, 2016. No resolution was reached.
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The Third Amended Complaint allegation 16: “On December 16, 2013 a tenant
at the WILLOW CREEK disposed of a cigarette on the balcony of apartment 524, Building F.
Rather than self-extinguishing, the fire ignited the DECKING and engulfed the second level of
apartment 524, Building F, and spread to other portions of the building, damaging it.”
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After the Mediation, on October 24, 2016, Plaintiff sent to Defendant a proposed
4th Amended Complaint, which deleted allegations against Schmidbauer, and added facts to the
reason for the fire spread, including the lack of required draft stops in the attic. Defendant
declined to stipulate to the filing of the 4th Amended Complaint, and Counsel for the parties
met and conferred by several emails, and several telephone conferences, including a telephone
conference on November 2, 2016 on Plaintiff’s proposed Motion for Leave to File an
Amended Complaint.
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Stipulation; Order thereon
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7.
On October 27, 2016, Plaintiff served a Supplemental Expert Report of its
construction expert, Jeffrey Hughes, which offered opinions that that plans and specifications
required attic drop stops, which were not properly installed. Plaintiff’s expert, Dr. Vyto
Barbrauskas, opined that this was another factor which contributed to the fire spread and
subsequent damage at the Willow Creek Apartments, which was incorporated into Plaintiff’s
proposed 4th Amended Complaint. In Defendant’s view, this is a new issue, beyond the
central allegation of a defective deck, that is not part of the current operative Third Amended
Complaint.
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Plaintiff’s Counsel filed a Motion for Leave to File an Amended Complaint on
November 9, 2016.
9.
The parties agree that it makes sense to defer DANCO’s expert depositions (all
are scheduled, but none have been taken), until the Court adjudicates the Motion for Leave to
File an Amended Complaint. Plaintiff suggested DANCO proceed with its taking Plaintiff’s
three expert witness depositions, by November 30, 2016. All three are scheduled.
10.
The parties herein, by and through their respective counsel of record, stipulate,
agree and request that this Court continue the presently set expert witness discovery date in this
case to adequately complete discovery.
11.
Based on the foregoing, the parties respectfully request an order extending the
expert witness deadline to January 6, 2017, the deadline for filing a dispositive motion to
February 15, 2017, and the hearing date on dispositive Motions to be held on April 12, 2017.
12.
The extension proposed by agreement of the parties to this Court would
accommodate the remaining expert discovery, based on this Court’s adjudication of Plaintiff’s
Motion for Leave to File an Amended Complaint and would not prejudice any parties.
WHEREFORE,
considering
the
foregoing,
PHILADELPHIA
INDEMNITY
INSURANCE COMPANY, the plaintiff in this action, DANCO BUILDERS, the defendant in
this action, move this Court to continue expert discovery cut-off- and stipulate and consent, in
writing.
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Stipulation; Order thereon
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Respectfully submitted,
Date: _________________
For the Plaintiff: PHILADELPHIA INDEMNITY INSURANCE COMPANY
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By _________________
STEPHEN N. COLE, Esq.
THE COLE LAW FIRM
3410 Industrial Blvd., Suite 100
West Sacramento, CA 95691
Tel: (916) 376-0486
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Date: _________________
For the Defendant DANCO BUILDERS
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By _________________
GEORGE D. YARON, ESQ.
D. DAVID STEELE, ESQ.
1300 Clay St.
Suite 800
Oakland, CA 94612
Tel: (415) 658-2929
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Stipulation; Order thereon
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uilders\15-cv-03945-who-proposed_order_to_continue_deadlines.docx
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UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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PHILADELPHIA INDEMNITY
INSURANCE COMPANY,
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Plaintiff,
vs.
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ORDER ON MOTION AND STIPULATION
TO CONTINUE CUT-OFF DATES (Fed. R.
Civ. P. 6(b))
DANCO BUILDERS and DOES 1 to10,
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CASE No. 15-cv-03945-WHO
Defendants.
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IT IS ORDERED that:
a) Expert Discovery Cut-off is continued to January 6, 2017;
b) Dispositive Motion to be filed by February 15, 2017.
c) Hearing on Dispositive Motion on April 12, 2017
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Dated: November 16, 2016
________________________________
UNITED STATES DISTRICT JUDGE
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Stipulation; Order thereon
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