Diaz et al v. DAWS Manufacturing Company, Inc et al

Filing 85

ORDER granting 84 Stipulation Regarding Testing of Cleats. Signed by Judge Edward J. Davila on 5/19/2016. (ejdlc1S, COURT STAFF) (Filed on 5/19/2016)

S
Attorneys for Plaintiffs

J

ER

R NIA

. D av i l a

H

7

5

RT

6

255 NORTH MARKET STREET, SUITE 190
SAN JOSE, CA 95110
Phone: [phone]
Fax : [phone]

w a rd J
u d ge E d

FO

THE JAMES SQUARE BUILDING

LI

NICOLE N. HANCOCK (State Bar No.221457)

NO

4

MICHAEL M. SHEA (State Bar No. 38396)
MICHAEL M. SHEA, JR. (State Bar No. 126983)
MARK B. O'CONNOR (State Bar No.126960)

D
RDERE

OO
IT IS S

A

3

UNIT
ED

2

SHEA & SHEA

A PROFESSIONAL LAW CORPORATION

RT
U
O

1

S DISTRICT
TE
C
TA

N

F
D IS T IC T O
R

8

5/19/2016
5/19/2016

SUPERIOR COURT OF CALIFORNIA,

9

C

NORTHERN DISTRICT OF CALIFORNIA

10
11

JESUS CORTES DIAZ, MARGARITA DIAZ

12
13

Case No. C 12-05325 EJD

and JESUS CORTES DIAZ as guardian ad
litem for ITZEL CORTES DIAZ, individually,

and as Successors in Interest of JOSE CORTES
DIAZ, deceased

14
15
16

STIPULATION REGARDING TESTING
OF CLEATS

Plaintiffs,
vs.

DAWS MANUFACTURING COMPANY,

INC., LOWE'S COMPANIES, INC., BETTER

17

BUILT COMPANY, SNAP-ON
INCORPORATED, KOBALT TOOLS,

18

inclusive,

19
20

21

LOWE'S HIW, INC., and DOES 1 through 100,

Defendants.

The parties have met and conferred and have agreed to stipulate as follows:
1. Plaintiffs filed an action captioned Jesus Diaz, et al. v. Paws Manufacturing

22

Company. Inc. et al., Case No. C 12-05325-EJD, in the United States District Court in the Northern

23

District of California alleging that Defendants manufactured or distributed defective toolboxes or

24

plastic retention cleats.

25

2. All parties affiliated in any manner with the above-referenced matter now desire to

26

enter into a stipulation and agreement pertaining to materials testing that will be conducted on the

27

subject plastic retention cleats and the subject toolbox.

1
DIAZ V. DAWS MANUFACTURING COMPANY, ET AL.

STIPULATION RE: TESTING OF CLEATS

CASE NO. C 12-05325 EJD

1

2
3

3. Now, therefore, the parties, through their undersigned counsel and attorneys of
record, stipulate and agree as follows:
4. It is hereby stipulated and agreed, by the parties hereto, that (A) the plastic retention

4

cleats located on the passenger right side of Plaintiff, Mr. Jesus Diaz's vehicle; (B) the toolbox

5

originally located on the right side and in the back of Mr. Diaz's vehicle that is currently in the back

6

of Mr. James Lee's vehicle; and (C) the plastic retention cleats originally attached to the toolbox on

7

the right side and that are located on or in the back of Mr. Diaz's vehicle be removed from

8

evidentiary storage at Bracco's Towing, where the plastic retention cleats and toolbox previously

9

described are presently located.

10

5. Furthermore, after the plastic retention cleats and toolbox described in the preceding

11

paragraph are removed from Mr. Diaz and Mr. Lee's vehicles located at Bracco's Towing, the

12

plastic retention cleats and toolbox will be given to a designated representative that all parties

13

consummating this stipulation will agree upon at a future date for further testing. The further testing

14

will include materials testing to be conducted jointly by all of the parties consummating this

15

stipulation and agreement in addition to each party's selected experts and consultants. The materials

16

testing will be, in part, destructive in nature. The date and time for the removal of the items herein

17

described will be determined by mutual agreement by the parties to this agreement as further

18

determined by the availability of any personnel from the CHP's office and/or Bracco's Towing.

19

6. Finally, it is hereby stipulated and agreed, by the parties hereto, that until a future

20

stipulation and agreement, the plastic retention cleats pertaining to the toolbox located on the lefit

21

(driver's) side of Mr. Diaz' vehicle and the tool box that remains located on and in the Diaz vehicle's

22

passenger compartment will remain in evidentiary storage.

23

24

7. Counsel for defendants Daws Manufacturing, Inc. and Lowe's Home Centers, LLC,
has advised that they have no objection to Plaintiffs' request.

25

8. During the removal of the tool box from the back of Mr. Lee's vehicle, as specified

26

in paragraph 4(b), the actual removal shall be recorded by video with a copy of the video provided

27

to Mr. Baker in addition to any other counsel who should make a request for a copy. Further, the

DIAZ V. DAWS MANUFACTURING COMPANY, ET AL. CASE NO. C 12-05325 EJD

STIPULATION RE: TESTING OF CLEATS

1

person who conducts the removal of the tool box shall provide a declaration under penalty of

2

perjury as to the removal stating he or she did nothing to the truck other than remove the tool box,

3

and that he or she observed no objects or discoloration in the portion of the truck in which he or she

4

moved in the course of removing the tool box or where the tool box was situated. However, if the

5

person does observe an object, objects and/or discoloration in the portion of the tmck in which he or

6

she moved in the course of removing the tool box or where the tool box was situated, he or she shall

7

describe in the above-noted declaration what he or she saw and cause it to be videotaped. The

8

description referred to in the preceding sentence shall as best as possible report quantity, size and

9

color.

10

SHEA & SHEA

Dated: May 17, 2016

11

/s/
NICOLEN.HANCOCK

By:

12
13

Attorneys for Plaintiffs Diaz

MARANGA MORGENSTERN

Dated: May 19, 2016

14

/s/

By:

15

PHILLIP T.S. TUKIA
Attorneys for Defendant r

16
17

DIVERSIFIED FASTENERS

WIGGINS MARKS ROSENBLATT LLP

Dated: May 13, 2016

18

/s/
TROYD.WIGGINS

By:

19

Attorneys for Defendant

20

DAWS MANUFACTURING COMPANY,
INC.; LOWE'S HOME CENTERS, LLC

21
22

LAW OFFICES OF RANDY BAKER

Dated: May 12, 2016

/s/
RANDY BAKER

By:

23
24

Attorney for Defendant

JAMES FRANCIS LEE

25

26

OFFICE OF THE DISTMCT ATTORNEY

Dated: May 17, 2016

/s/
ANGELA BERNHARD

By:

27

Deputy District Attorney
3
DIAZ V. DAWS MANUFACTURING COMPANY, ET AL.

STIPULATION RE: TESTING OF CLEATS

CASE NO. C 12-05325 EJD