In Re: Methyl Tertiary Butyl Ether ("MTBE") Products Liability Litigation

Filing 4064

DECLARATION of Peter C. Condron in Support re: (333 in 1:04-cv-04968-SAS) MOTION for Summary Judgment based on Res Judicata.. Document filed by Atlantic Richfield Company, Inc., BP Products North America, Inc., BP West Coast LLC (Doe 3), Equilon Enterprises LLC,, Shell Oil Company, Inc., Texaco Refining and Marketing Inc.,. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)Filed In Associated Cases: 1:00-cv-01898-SAS-DCF, 1:04-cv-04968-SAS(Condron, Peter)

Exhibit B

DO NOT DUPLICATE

PURSUANT TO GOVERNMENT CODE 69954(d)

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF ORANGE, COMPLEX JUSTICE CENTER
DEPARTMENT CXI04

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THE PEOPLE OF THE
STATE OF CALIFORNIA,

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Plaintiff,
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vs.

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ORIGINAL

) No. 804031

SHELL OIL COMPANY, etc., et al.,

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Defendants.

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If.

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HONORABLE DAVID C. VELASQUEZ, JUDGE PRESIDING

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REPORTER'S TRANSCRIPT

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JANUARY 5, 2 005

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(Appearances on the following page:)

CHARLOTTE FREEMAN, CSR NO. 3084, RDR, CRR, OFFICIAL REPORTER

DO NOT DUPLICATE

PURSUANT TO GOVERNMENT CODE 69954(d)

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As you know. Your Honor, this case, as of

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tomorrow, ironically this case has been on file for six

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years.

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January 6th of 1999.

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filed in May of

It was originally filed by the People on
The First Amended Complaint was

01; so nearly three years ago.

And the People -- the Orange County Water

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District has known for years about the existence of

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this lawsuit.

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Orange County Water District made a judgment to file

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its own lawsuit in May of '03, nearly two years ago.

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It did not seek to intervene in this lawsuit at that

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time.

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lawsuit at any time over the last two years, even

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though it was well known by the Water District that the

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parties were in settlement discussions.

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It

And indeed as you know, Your Honor, the

it did not seek to intervene in this

They could read the Complaint.

If they had

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some issue about their interest being affected by this

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lawsuit, they knew exactly what they could do.

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could have timely filed for leave to intervene.

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They

I submit, Your Honor, that this is untimely and
should be rejected out of hand.
Let me make one other point. Your Honor.

It's

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interesting that Mr. Miller has not suggested to you

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what possible relief he is seeking.

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talk about the discretion that the Court has.

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this were timely, I believe that the rule talks about

Section 387 does
Even if

CHARLOTTE FREEMAN, CSR NO. 3084, RDR, CRR, OFFICIAL REPORTER

DO NOT DUPLICATE - PURSUANT TO GOVERNMENT CODE 69954(d)

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the effect on the parties and the effect on the
lawsuit, the delaying the lawsuit and changing the
calculus for the existing parties to the lawsuit.
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Mr. Miller hasn't said what relief he wants
but, by definition, he seems to be seeking to upset the

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entire settlement.
As you know, Your Honor, the Orange County

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Water District lawsuit against the Shell defendants was

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originally in your court.

And I think you know, but

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I'll just remind you, that that case was removed to

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Federal Court and was transferred back as part of a

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multidistrict litigation to the Southern District of

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New York; that the MDL, including the Orange County

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Water District litigation, is now before Judge Shinlin

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in the Southern District of New York.

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I submit, Your Honor, that in addition to the

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untimeliness problem that Mr. Miller has, if there is

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an issue as to the effect, if any, of this settlement

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on the Orange County Water District case, Mr. Miller

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and his client has ample opportunity to litigate that

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case, litigate that issue, before the proper forum; and

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that is the Judge who has the Orange County Water

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District case.

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')

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They can make whatever arguments they want
before Judge Shinlin, and we will make whatever
arguments we have before Judge Shinlin.

But it is

CHARLOTTE FREEMAN, CSR NO. 3084, RDR, CRR, OFFICIAL REPORTER

DO NOT DUPLICATE

PURSUANT TO GOVERNMENT CODE 69954(d)

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entirely inappropriate, as I say, at the 12th hour, in

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essence, for Mr. Miller to come in and, I guess, seek

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sort of an advisory opinion from you about the effect

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of this settlement on that lawsuit.

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I submit. Your Honor, that what Mr. Miller is

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trying to do at the 12th hour is to, in effect, go

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around the back door of the MDL, to circumvent the MDL

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proceeding, to try to avoid the fact that his lawsuit

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is now back in the Southern District of New York, and

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to circumvent the authority of Judge Shinlin.
So I join with the District Attorney's office

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and the People and ask you to enter the settlement

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forthwith and leave to another day for Judge Shinlin

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the issue of what effect, if any, this settlement may

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have on the Orange County Water District litigation.

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THE COURT:

The Court

I have a question.

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Mr. Miller.

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Court to make any findings, whether advisory or

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otherwise.

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The Court has not heard a request for this

What I thought I heard was a request of the

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parties to make certain concessions, if the Court were

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to move forward on the proposed settlement or, by

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inference, I guess, Mr. Miller, you're suggesting that

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that's not forthcoming, meaning a stipulation and
concession by the parties, some sort of continuance or
stay of today's proceedings.

CHARLOTTE FREEMAN

CSR NO. 3084, RDR, CRR, OFFICIAL REPORTER

DO NOT DUPLICATE

PURSUANT TO GOVERNMENT CODE 69954(d)

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consider the timeliness of the request.
This is a very late request.

In fact, the

Court now has basically pen to paper with respect to
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approving the settlement agreement.
And the case, People versus Superior Court,

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does say that trial Court possesses its discretion to
deny intervention, even if direct interest is shown by

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the purported third-party intervener where the original

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litigant rights or interests outweigh the intervener's

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concern, potential delay, multiplicity of actions,

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which the Court sees great prejudice to these parties,

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having worked very hard on the settlement and also

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worked very hard of getting the case ready for trial

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before settlement discussions were made known to this

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Court.
So the Court would exercise its discretion not

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to take any action to delay proceedings.
I make no findings about the effect of this

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settlement on any other action.

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appropriate Court at the appropriate time make those

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determinations.

I'11 let an

The Court had earlier at a prior hearing met

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with the parties in this action, has reviewed the

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proposed final judgment; and but for a couple of

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provisions which -- which I think are now corrected

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concerning the manner in which the provisions would be

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2HARLOTTE FREEMAN, CSR NO. 3084, RDR, CRR, OFFICIAL REPORTER