Case Number: BC503381 Hearing Date: March 28, 2018 Dept: J

Re: Felipe Mireles, et al. v. ConocoPhillips Company, et al. (BC503381)

MOTION TO STAY LITIGATION OR SEVER PARTIES ON APPEAL FROM CROSS-COMPLAINT

Moving Parties: Cross-Defendants Pacific Convenience & Fuels, LLC, Convenience Retailers LLC, Sam Hirbod and Shireen Hirbod; Joinder by Cross-Defendants Field Energy Corporation and Stephen A. Dakay as to request to stay

Respondents: Cross-Complainants ConocoPhillips Company and Phillips 66 Company

POS: Moving OK; Opposing OK; Reply OK; Joinder request untimely[1]

This is a personal injury and loss of consortium action filed by Plaintiffs arising out of propane fire at a 76 gas station. The Complaint alleges that on October 1, 2011, Plaintiff Felipe Mireles went to a 76 gas station to have a propane tank filled and sustained personal injuries caused by a propane fire. Plaintiffs allege that at the time of the incident, Defendants were agents of each other and acting within the course and scope of their authority as such agents; they were negligent in selling, dispensing, marketing, providing, and servicing the propane; and that they were also negligent in owning, operating, controlling, and managing the property and propane dispensing business. Plaintiffs commenced this action on 3/19/13, asserting causes of action for:

1. Negligence

2. Loss of Consortium

On 9/14/16, ConocoPhillips Company and Phillips 66 Company, individually and as assignee of ConocoPhillips Company (“cross-complainants”) filed their cross-complaint; the cross-complaint was ordered severed from plaintiffs’ complaint at that time. On 10/31/16, cross-complainants filed their First Amended Cross-Complaint. On 2/24/17 cross-complainants filed their operative Second Amended Cross-Complaint (“SACC”) asserting causes of action therein for:

1. Breach of Contract (as against Pacific Convenience & Fuels, LLC [“Pacific”])

2. Breach of Contract (as against Convenience Retailers, LLC [“Convenience”])

3. Breach of Contract (as against Apro, LLC [“Apro”])

4. Breach of Guaranty (as against Sam and Shireen Hirbod [“The Hirbods”])

5. Equitable Indemnity (as against All Cross-Defendants)

On 3/8/17, pursuant to the directive of Department 1, the court ordered the matter transferred to Department 1 for trial assignment on 3/21/17, with trial to be heard as to the complaint only. On 3/23/17, Department 1 assigned the case (complaint only) to Department B of the Compton courthouse for trial.

On 5/17/17, cross-complainants dismissed their fifth cause of action as to Apro only, without prejudice. On 5/22/17, cross-complainants dismissed their second cause of action as to CR only, without prejudice. On 5/25/17, a partial dismissal, without prejudice, was filed as to the complaint.

On 6/5/17, the court sustained Defendants Pacific’s, Convenience’s and The Hirbods’ demurrer to the SACC without leave to amend. On 6/15/17, the “Order of Dismissal” as to the aforesaid defendants was filed.

On 8/24/17, the court granted Apro’s motion for judgment on the pleadings, without leave to amend as to the third cause of action in the SACC. On 9/19/17, the “Order of Dismissal of Causes of Action Alleged in…[SACC] Following Grant of Motion for Judgment on the Pleadings Without Leave to Amend” was filed. On 10/12/17, Apro filed its “Notice of Entry of Judgment” and served same via mail.

The Final Status Conference is set for 7/9/18. A jury trial is set for 7/17/18.

Cross-Defendants Pacific Convenience & Fuels, LLC (“PCF”), Convenience Retailers LLC (“CR”), Sam Hirbod and Shireen Hirbod (“the Hirbods”) (collectively, “moving cross-defendants”) move, per CCP §§ 128(a)(8), 187, 1048 and 598, for an order staying the cross-action until such time as Cross-Complainants ConocoPhillips Company’s and Phillips 66 Company’s (“cross-complainants”) appeals of the court’s orders granting cross-defendants’ challenges to the cross-complaint, at the pleadings stage, have been concluded. The appeal, inter alia, pertains to cross-complainants’ equitable indemnity cause of action, which cross-complainants are pursuing against the remaining cross-defendants. Alternatively, the moving cross-defendants move for an order severing cross-complainants’ Second Amended Cross-Complaint (“SACC”) in this matter, and ordering that the SACC against PCF, CR, the Hirbods and Apro, LLC be tried separately from the other causes of action against the remaining Cross-Defendants, Suburban Propane LP, Field Energy Corporation, and Stephen A Dakay.

REQUEST FOR JUDICIAL NOTICE:

Initially, the moving cross-defendants’ request for judicial notice (“RJN”) is ruled on as follows: Grant as to Exhibit “1” (i.e., Plaintiffs Felipe Mireles and Maria Mireles (“plaintiffs”) complaint filed 3/19/13); Grant as to Exhibit “2” (i.e., plaintiffs’ “Request for Dismissal” of PCF with prejudice filed 4/14/15); Grant as to Exhibit “3” (i.e., plaintiffs’ “Request for Dismissal” of CR with prejudice filed 3/8/16); Grant as to Exhibit “4” (i.e., cross-complainants’ “Request for Dismissal” of the 2nd cause of action in the SACC as to CR only, without prejudice and their “Request for Dismissal” of the 4th cause of action in the SACC as to the Hirbods only, without prejudice); Grant as to Exhibit “5” (i.e., Cross-Complainants’ “Request for Dismissal” of the 5th cause of action in the SACC as to Apro only, without prejudice, filed 5/17/17 ); Grant as to Exhibit “6” (i.e., “Order of Dismissal of Causes of Action Alleged in ConocoPhillips Company and Phillips 66 Company, Individually and as Assignee of ConocoPhillips Company’s Second Amended Cross-Complaint as Against Cross-Defendants Pacific Convenience & Fuels, LLC, Convenience Retailers, LLC, Sam Hirbod and Shireen Hirbod Following Grant of Demurrer Without Leave to Amend” filed 6/15/17); Grant as to Exhibit “7” (i.e., “Notice of Entry of Judgment or Order” dated 9/11/17 from Apro, attaching the court’s 8/24/17 minute order and “Notice of Entry of Judgment or Order” dated 10/10/176 from Apro, attaching the 9/19/17 “Order of Dismissal of Causes of Action Alleged in ConocoPhillips Company’s and Phillips 66 Company’s Second Amended Cross-Complaint Following Grant of Motion for Judgment on the Pleadings Without Leave to Amend”) and Grant as to Exhibit “8” (i.e., SACC).

“Every court shall have the power to do all of the following:…(8) To amend and control its process and orders so as to make them conform to law and justice…” CCP § 128(a)(8). Also, “[w]hen jurisdiction is, by the Constitution or this Code, or by any other statute, conferred on a Court or judicial officer, all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this Code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this code. CCP § 187.

“[C]ourts have inherent equity, supervisory and administrative powers (Bauguess v. Paine (1978) 22 Cal.3d 626, 635) as well as inherent power to control litigation before them. (Western Steel & Ship Repair, Inc. v. RMI, Inc. (1986) 176 Cal.App.3d 1108, 1116-1117). Inherent powers of the court are derived from the state Constitution and are not confined by or dependent on statute. (Walker v. Superior Court (1991) 53 Cal.3d 257, 267).” Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, 1377. “Trial courts generally have the inherent power to stay proceedings in the interests of justice and to promote judicial efficiency.” Frieberg v. City of Mission Viejo (1995) 33 Cal.App.4th 1484, 1489 (citations omitted). “[I]t may be in the interests of justice to stay a trial until another party’s appeal is decided.” Id.

The register of actions in the pending appeal as of 3/19/18 for Case No. B284021 reflects that the opening brief was filed 3/7/18, that respondent’s brief is due 4/6/18 and that a settlement conference is set for 4/25/18. The register of actions in the pending appeal as of 3/19/18 for Case No. B285752 reflects that appellant’s appendix and opening brief are due 5/25/18.

A jury trial is currently set in this case for 7/17/18. Based on the above registers of action, it likely that the appeals will not be concluded before the 7/17/18 trial date. As the moving cross-defendants point out, “if the demurrer is reversed on appeal there will be either a second trial involving the exact same witnesses and evidence or (depending upon scheduling issues or trial court availability) possibly a return to the same trial in the absence of the ability to participate in discovery. The possibility of a second trial would also raise potential res judicata implications for Moving Cross-Defendants.” (Reply, 1:22-26). A stay of the action pending resolution of both appeals, then, is appropriate at this juncture.

The motion is granted, to the extent that the case is ordered stayed pending the outcome of the appeals.

[1] On 3/15/18, Cross-Defendants Field Energy Corporation and Stephen A. Dakay purported to join the stay request and oppose the severance request. Their joinder is untimely, but their opposition is timely.