James E. Welsh vs. Arlon Graphics, LLCResponseCal. Super. - 4th Dist.June 10, 2016A T T O R N E Y S A T L A W oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O William C. Bollard, Bar No. 105489 william @jbblaw.com M. Adam Tate, Bar No. 280017 adam@jbblaw.com JULANDER, BROWN & BOLLARD 9110 Irvine Center Drive Irvine, California 92618 Telephone: (949) 477-2100 Facsimile: (949) 477-6355 Attorneys for ARLON, LLC and HANDY & HARMAN, LTD ELECTRONICALLY FILED Superior Court of California, County of Orange 12/06/2017 at 02:04:00 Ph Clerk of the Superior Court By Angelina Nguyen-Do, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE, CENTRAL JUSTICE CENTER JAMES E. WELSH and NANCY S. WELSH, individually and as trustees of The Welsh Family Trust dated April 29, 1979, Plaintiffs, VS. ARLON GRAPHICS, LLC, a California limited liability company; FLEX CON COMPANY, INC., a Massachusetts corporation; and DOES I through 50, inclusive, Defendants. AND RELATED CROSS-ACTIONS Case No. 30-2016-00857322-CU-BC-CJC ASSIGNED FOR ALL PURPOSES TO: HON. GREGORY H. LEWIS, DEPT. C26 ARLON LLC’S RESPONSES TO EVIDENTIARY OBJECTIONS ASSERTED BY CROSS- COMPLAINANTS Date: December 11, 2017 Time: 10:30 a.m. Crtrm.: C26 RESERVATION NO.: 72670362 Action Filed: Trial Date: June 10, 2016 January 16, 2018 RESPONSE TO OPPOSITION EVIDENTIARY OBJECTIONS A T T O R N E Y S A T L A W oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O Moving Parties ARLON, LLC and HANDY & HARMAN, LTD (collectively “Cross- Defendants” or “Arlon”) respectfully object to the following responses to the Evidentiary Objections submitted by Defendants Arlon Graphics LLC and FLEXcon Company, Inc. (collectively “Graphics”). MATERIAL GROUNDS FOR RESPONSE TO RULINGS ON OBJECTED TO: OBJECTION: OBJECTION: OBJECTION: 1. On or about Objection. Irrelevant. | The Landlord’s Consent | Sustained: January 18, 2011, Because the APA agreement is arguably Overruled: Plaintiffs (Landlords) consented to the assignment of the Lease to Cross-Complainants, agreeing that: (1) Cross- Defendants were not in breach of any of their Lease obligations; (2) all of Cross- Defendants’ Lease obligations were satisfied; and (3) Cross- Defendants were not in default in the performance of any of the Lease covenants. SDF No. 3 Index, Ex. 2 [01/18/11 Letter Agreement]; Index Ex. 7 [J. Welsh Depo. III], p. 119:8-20; Index Ex. 12 [Graphics Response to Cross- Defendants’ RFAs (Set 1)], Response No. 31; Index Ex. 17 [James Welsh’s Amended Response to Cross- requires indemnification for any loss related to the “operation of the business” before the Closing Date, and the Welsh claim included the failure to replace systems of the factory which had reached the end of their useful life, and because Arlon admits it operated that factory and extracted 22 years of those systems’ useful lives, this “fact” is irrelevant. It does not matter if there was no breach then because the breach alleged after moveout included failure to replace systems at the end of their useful life and whether or not breach lay January 18, 2011 has nothing to do with whether a significant portion of the systems’ useful lives had been the most relevant document in this entire case. It absolves Graphics from all liability for any damages that predate the Closing Date. It further acknowledges that, as of the date of the Consent, Arlon was not in breach of any obligation under the Lease or otherwise in default under the Lease. Having waived all claims for any damages arising prior to the Closing Date, the Plaintiffs’ claims in this action necessarily pertain to the period after the Closing Date. Because it is undisputed that Arlon has no obligation to indemnify Graphics for claims that pertain to the period Defendants’ RFAs (Set | expended before that after the Closing Date, 1)], Response No. 34; date. summary judgment is Index Ex. 9 [Trombino appropriate. Depo.], p. 104:8-14. SDF No. 3 2 RESPONSE TO OPPOSITION EVIDENTIARY OBJECTIONS A T T O R N E Y S A T L A W oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O 2 In the January 18, 2011 letter agreement, Plaintiffs expressly agreed [underscore added; bold in original]: Lessor hereby acknowledges that, notwithstanding anything to the contrary in the Lease or the Guaranty (hereinafter defined), effective as of the Closing Date, ... (¢) Purchaser [Cross- Complainants] shall be responsible for all obligations arising out of or in connection with the Lease from and after the Closing Date; provided, however, (a) Purchaser shall have no liability for obligations arising prior to the Closing Date, and (b) as between Purchaser and Lessee, nothing in this letter agreement shall expand or diminish the rights and obligations of Purchaser and Lessee under the Agreement. Index, Ex. 2 [01/18/11 Letter Agreement]; Index Ex. 7 [J. Welsh Depo. III], p. 119:8-20; Index Ex. 12 [Graphics Response to Cross- Defendants’ RFAs (Set Objection. Irrelevant. 1) Because the APA requires indemnification for any loss related to the “operation of the business” before the Closing Date, and the Welsh claim included the failure to replace systems of the factory which had reached the end of their useful life, and because Arlon admits it operated that factory and extracted 22 years of those systems’ useful lives, this “fact” is irrelevant. It does not matter if there was no breach then because the breach alleged after moveout included failure to replace systems at the end of their useful life and whether or not breach lay January 18, 2011 has nothing to do with whether a significant portion of the systems’ useful lives had been expended before that date. 2) this Motion concerns Cross- Defendants’ liability to Graphics, and Plaintiffs have no ability to release Cross- Defendants’ liability to Graphics, making this “fact” non sequiter. SDF No. 4 The Landlord’s Consent agreement is arguably the most relevant document in this entire case. It absolves Graphics from all liability for any damages that predate the Closing Date. It further acknowledges that, as of the date of the assignment, Arlon was not in breach of any obligation under the Lease or otherwise in default under the Lease. Having waived all claims for any damages arising prior to the Closing Date, the Plaintiffs’ claims in this action necessarily pertain to the period after the Closing Date. Because it is undisputed that Arlon has no obligation to indemnify Graphics for claims that pertain to the period after the Closing Date, summary judgment is appropriate. As set forth in the Reply, Graphics’ interpretation of the APA — that Arlon should be forever responsible to indemnify Graphics for the aging or degradation of all building components — would lead to absurd results. Sustained: Overruled: 3 RESPONSE TO OPPOSITION EVIDENTIARY OBJECTIONS A T T O R N E Y S A T L A W oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O 1)], Response No. 31; Index Ex. 17 [James Welsh’s Amended Response to Cross- Defendants’ RFAs (Set 1)], Response No. 34; Index Ex. 9 [Trombino Depo.], p. 104:8-14. 3. In this action, Plaintiffs do not contend that any of their alleged damages arose prior to the February 4, 2011 Closing Date. Index Ex. 15 [James Welsh’s Second Amended and Supplemental Response to Cross-Defendants’ Special Interrogatories (Set One)], Response Nos. 1, 15 [“Responding Party has made no such contention in this case.”] and 26; see generally, Index Ex. 16 [James Welsh’s Response to Cross-Defendants’ Special Interrogatories (Set 2)], Response Nos. 77-126; Index Ex. 7 [J. Welsh Depo. III], pp. 122:21- 123:5; Index Ex. 8 [N. Welsh Depo.], p. 11:19-23; Bollard Decl., 20; Index, Ex. 19 [06/28/17 Letter from Plaintiffs’ counsel], pp. 1-2; Bollard Decl., 19; Index, Ex. 18 [05/16/17 Letter from Plaintiffs’ counsel], p. 2. Objection. Irrelevant. Because the APA requires indemnification for any loss related to the “operation of the business” before the Closing Date, and the Welsh claim included the failure to replace systems of the factory which had reached the end of their useful life, and because Arlon admits it operated that factory and extracted 22 years of those systems’ useful lives, this “fact” is irrelevant. SDF No. 5 Plaintiffs’ admissions that they are not making any claims related to the period prior to the Closing Date are highly relevant. Plaintiffs acknowledge that they waived all claims that accrued prior to the Closing Date. If Plaintiffs’ claims post- date the Closing Date, Arlon has no obligation to indemnify Graphics in this action and summary judgment is appropriate. As set forth in the Reply, Graphics’ interpretation of the APA — that Arlon should be forever responsible to indemnify Graphics for the aging or degradation of all building components — would lead to absurd results. Sustained: Overruled: 4 RESPONSE TO OPPOSITION EVIDENTIARY OBJECTIONS A T T O R N E Y S A T L A W oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O 4. On or about Objection. Duplicative. | The fact is not Sustained: February 4, 2011 This “fact” is identical “duplicative” since it Overruled: (hereinafter the “Closing | to SDF No. 1. pertains to a different Date”), Cross- issue/cause of action. Defendants (as Sellers) | SDF No. 6 assigned their leasehold “In a motion for interest in the subject summary judgment/ Premises to Cross- adjudication, where Complainants (as ‘undisputed facts’ Purchasers) in pertain to more than one connection with an asset claim, issue or defense, purchase of these facts (together approximately with the supporting $27,000,000.00 of evidence) must be Cross-Defendants’ repeated for each issue.” assets. Index Ex. 3 [Asset Weil & Brown, Cal. Purchase Agreement], p. Prac. Guide: Civ. Pro. 20, §2.5; Index Ex. 1 Before Trial (The Rutter [Lease Assignment]; Group 2017), Ch. 10-C, Index Ex. 5 Complaint, 410:96.7 1914-15; Index Ex. 6 SAXC, qq5-6, Ex. A thereto; Index Ex. 12 [Graphics Response to Cross-Defendants’ RFAs (Set One)], Response Nos. 25, 32. 4. The Asset Objection. Duplicative. | The fact is not Sustained: Purchase Agreement This “fact” is identical “duplicative” since it Overruled: provides: 2.3 Assumption of Liabilities. Subject to the terms and conditions of this Agreement, on the Closing Date, Purchaser agrees to irrevocably assume and become exclusively responsible for all of the following Liabilities of Seller to No. 2. SDF No. 7 pertains to a different issue/cause of action. “In a motion for summary judgment/ adjudication, where ‘undisputed facts’ pertain to more than one claim, issue or defense, these facts (together with the supporting evidence) must be repeated for each issue.” 5 RESPONSE TO OPPOSITION EVIDENTIARY OBJECTIONS A T T O R N E Y S A T L A W oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O related to the Business (collectively, the “Assumed Liabilities”): (a) all Liabilities under the Assigned Contracts, Real Property Leases and the Personal Property Leases, but only if and to the extent (i) such Liabilities accrue after close of business on the Closing Date and do not pertain to the period prior to the Closing... Index Ex. 3[ Asset Purchase Agreement]; p. 15, §2.3. Weil & Brown, Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2017), Ch. 10-C, q10:96.7 5. On or about January 18, 2011, Plaintiffs (Landlords) consented to the assignment of the Lease to Cross-Complainants, agreeing that: (1) Cross- Defendants were not in breach of any of their Lease obligations; (2) all of Cross- Defendants’ Lease obligations were satisfied; and (3) Cross- Defendants were not in default in the performance of any of the Lease covenants. Index, Ex. 2 [01/18/11 Letter Agreement]; Index Ex. 7 [J. Welsh Depo. III], p. 119:8-20; Index Ex. 12 [Graphics Response to Cross- Objection. Duplicative. This “fact” is identical to No. 3. Objection. Irrelevant. Because the APA requires indemnification for any loss related to the “operation of the business” before the Closing Date, and the Welsh claim included the failure to replace systems of the factory which had reached the end of their useful life, and because Arlon admits it operated that factory and extracted 22 years of those systems’ useful lives, this “fact” is irrelevant. It does not matter if there was no breach then because the Re: Duplicative: The fact is not “duplicative” since it pertains to a different issue/cause of action. “In a motion for summary judgment/ adjudication, where ‘undisputed facts’ pertain to more than one claim, issue or defense, these facts (together with the supporting evidence) must be repeated for each issue.” Weil & Brown, Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2017), Ch. 10-C, q10:96.7 Sustained: Overruled: 6 RESPONSE TO OPPOSITION EVIDENTIARY OBJECTIONS A T T O R N E Y S A T L A W oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O Defendants’ RFAs (Set 1)], Response No. 31; Index Ex. 17 [James Welsh’s Amended Response to Cross- Defendants’ RFAs (Set 1)], Response No. 34; Index Ex. 9 [Trombino Depo.], p. 104:8-14. breach alleged after moveout included failure to replace systems at the end of their useful life and whether or not breach lay January 18, 2011 has nothing to do with whether a significant portion of the systems’ useful lives had been expended before that date. SDF No. 8 Re: Relevance: The Landlord’s Consent agreement is arguably the most relevant document in this entire case. It absolves Graphics from all liability for any damages that predate the Closing Date. It further acknowledges that, as of the date of the assignment, Arlon was not in breach of any obligation under the Lease or otherwise in default under the Lease. Having waived all claims for any damages arising prior to the Closing Date, the Plaintiffs’ claims in this action necessarily pertain to the period after the Closing Date. Because it is undisputed that Arlon has no obligation to indemnify Graphics for claims that pertain to the period after the Closing Date, summary judgment is appropriate. As set forth in the Reply, Graphics’ interpretation of the APA — that Arlon should be forever responsible to indemnify Graphics for the aging or degradation of all building components — would lead to absurd results. 7 RESPONSE TO OPPOSITION EVIDENTIARY OBJECTIONS A T T O R N E Y S A T L A W oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O 6. In the January 18, 2011 letter agreement, Plaintiffs expressly agreed [underscore added; bold in original]: Lessor hereby acknowledges that, notwithstanding anything to the contrary in the Lease or the Guaranty (hereinafter defined), effective as of the Closing Date, ... (¢) Purchaser [Cross- Complainants] shall be responsible for all obligations arising out of or in connection with the Lease from and after the Closing Date; provided, however, (a) Purchaser shall have no liability for obligations arising prior to the Closing Date, and (b) as between Purchaser and Lessee, nothing in this letter agreement shall expand or diminish the rights and obligations of Purchaser and Lessee under the Agreement. Index, Ex. 2 [01/18/11 Letter Agreement]; Index Ex. 7 [J. Welsh Depo. III], p. 119:8-20; Index Ex. 12 [Graphics Response to Cross- Defendants’ RFAs (Set Objection. Duplicative. This “fact” is duplicative of No. 4. Objection. Irrelevant. 1) Because the APA requires indemnification for any loss related to the “operation of the business” before the Closing Date, and the Welsh claim included the failure to replace systems of the factory which had reached the end of their useful life, and because Arlon admits it operated that factory and extracted 22 years of those systems’ useful lives, this “fact” is irrelevant. It does not matter if there was no breach then because the breach alleged after moveout included failure to replace systems at the end of their useful life and whether or not breach lay January 18, 2011 has nothing to do with whether a significant portion of the systems’ useful lives had been expended before that date. 2) this Motion concerns Cross- Defendants’ liability to Graphics, and Plaintiffs have no ability to release Cross- Defendants’ liability to Graphics, making this “fact” non sequiter. SDF No. 9 Re: Duplicative: The fact is not “duplicative” since it pertains to a different issue/cause of action. “In a motion for summary judgment/ adjudication, where ‘undisputed facts’ pertain to more than one claim, issue or defense, these facts (together with the supporting evidence) must be repeated for each issue.” Weil & Brown, Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2017), Ch. 10-C, q10:96.7 Re: Relevance: The Landlord’s Consent agreement is arguably the most relevant document in this entire case. It absolves Graphics from all liability for any damages that predate the Closing Date. It further acknowledges that, as of the date of the assignment, Arlon was not in breach of any obligation under the Lease or otherwise in default under the Lease. Having waived all claims for any damages arising prior to the Closing Date, the Plaintiffs’ claims in this action necessarily Sustained: Overruled: 8 RESPONSE TO OPPOSITION EVIDENTIARY OBJECTIONS A T T O R N E Y S A T L A W oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O 1)], Response No. 31; Index Ex. 17 [James Welsh’s Amended Response to Cross- Defendants’ RFAs (Set 1)], Response No. 34; Index Ex. 9 [Trombino Depo.], p. 104:8-14. pertain to the period after the Closing Date. Because it is undisputed that Arlon has no obligation to indemnify Graphics for claims that pertain to the period after the Closing Date, summary judgment is appropriate. As set forth in the Reply, Graphics’ interpretation of the APA — that Arlon should be forever responsible to indemnify Graphics for the aging or degradation of all building components — would lead to absurd results. 1s There is no evidence that any of the damages at issue in this action arose prior to the February 4, 2011, Closing Date. Index, Ex. 2 [1/18/11 Letter Agreement]; Index Ex. 12 [Arlon Graphics’ Response to Cross- Defendants’ RFAs (Set 1)], Response Nos. 3 [“Responding Party admits that the PREMISES were in ‘good repair’ on February 4, 2011.”], and 14-24; Index Ex. 13 [Arlon Graphics’ Response to Cross- Defendants’ Special Interrogatories (Set One)], Response Nos. 9- Objection. Irrelevant. Because the APA requires indemnification for any loss related to the “operation of the business” before the Closing Date, and the Welsh claim included the failure to replace systems of the factory which had reached the end of their useful life, and because Arlon admits it operated that factory and extracted 22 years of those systems’ useful lives, this “fact” is irrelevant. Objection. Misstates the evidence. The evidence is misstated because the quotation of Arlon Graphics’ Re: Relevance: Plaintiffs’ admissions that they are not making any claims related to the period prior to the Closing Date are highly relevant. Plaintiffs acknowledge that they waived all claims that accrued prior to the Closing Date. If Plaintiffs’ claims post- date the Closing Date, Arlon has no obligation to indemnify Graphics in this action and summary judgment is appropriate. Likewise, Graphics own admissions that the Premises were in good condition and repair on Sustained: Overruled: 9 RESPONSE TO OPPOSITION EVIDENTIARY OBJECTIONS A T T O R N E Y S A T L A W oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O 11 [“The PREMISES were in ‘good condition’ and Plaintiffs’ alleged damages do not exist. . . .”’], and 38- 41; Index Ex. 9 [Trombino Depo.], p. 105:3-10; Index Ex. 11 [Nicholson Depo.], p. 166: 15-17; Index Ex. 7 [J. Welsh Depo.], pp. 122:21-123:5; Index Ex. 8 [N. Welsh Depo.], p. 11:19-23; Index Ex. 15 [James Welsh’s Second Amended and Supplemental Response to Cross- Defendants’ Special Interrogatories (Set One)], Response Nos. 1, 15 and 26; see generally, Index Ex. 16 [James Welsh’s Response to Cross- Defendants’ Special Interrogatories (Set 2)], Response Nos. 77-126; Index Ex. 14 [James Welsh’s Response to Cross-Defendants’ Form Interrogatories (Set One)], No. 17.1; Bollard Decl., 20; Index, Ex. 19 [06/28/17 Letter from Plaintiffs’ counsel], pp. 1-2; Bollard Decl., 19; Index, Ex. 18 [05/16/17 Letter from Plaintiffs’ counsel], p. 2. Response to Cross- Defendants’ Special Interrogatories (Set One)], Response Nos. 9- 11 elides the language “In the alternative, to the extent a trier of fact finds that those alleged damages do exist, they are the responsibility of Propounding Party in proportion to the time for which Propounding Party leased and otherwise used the PREMISES and/or the extent to which the alleged damages are found to have accrued during Propounding Party’s leasing and use of the PREMISES.” ROA #177 (Arlon’s Exhibits) at PDF pages 251-53 of 479. The Interrogatory and particularly the use of it here is improper because it seeks to force Graphics to choose between protecting its defense against Welsh and its claim against Arlon. C.f., Montrose Chemical Company v. Superior Court (Canadian Universal Insurance Co.) 6 Cal.4™h 287, 301-02 (1993) (Insurer may not try issues of duty to indemnify by means of declaratory relief action while underlying case is ongoing). Objection. Misstates the evidence. The the Closing Date are highly relevant since, if there were no damages to the Premises prior to the Closing Date, Arlon has no obligation to indemnify Graphics in this action and summary judgment is appropriate. As set forth in the Reply, Graphics’ interpretation of the APA — that Arlon should be forever responsible to indemnify Graphics for the aging or degradation of all building components — would lead to absurd results. Re: Misstates the Evidence: Graphics’ speculation that a trier of fact may find damages that predate the Closing is insufficient to overcome summary judgment. A party opposing summary judgment must produce substantial responsive evidence to refute the facts established by the moving party. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) Speculation and the hope of favorable future testimony are not sufficient to satisfy that burden. (Doe v. Salesian Soc. (2008) 159 Cal.App.4th 474, 10 RESPONSE TO OPPOSITION EVIDENTIARY OBJECTIONS A T T O R N E Y S A T L A W oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O evidence is misstated because Graphics’ Responses to Cross- Defendants’ RFAs (Set 1) Nos. 3 and 14-24 were amended and no longer include the quoted language, but rather state, inter alia, that “[r]esponding Party and/or Responding Party’s parent relied on the Warranty of Propounding Party in Section 4.5(b) as to the condition of the PREMISES as of February 4, 2011. To the extent a trier of fact determines Plaintiffs’ claims do exist, the responsibility for any liability flowing from that condition is that of Propounding Party pursuant to provisions in the APA including but not limited to 2.11(a) and 4.5(b). . ... The condition of the factory was consistent with the usual and expected wear and tear for a factory of that age which had been used for like purposes. This includes but is not limited to Plaintiffs’ contention that various components had reached the end of their useful life because if Responding Party is held to have to replace components that reached the end of their useful life, then Propounding Party is liable to Responding Party for 481.) In addition, a party cannot create a triable issue of fact by contradicting prior sworn statements. (See, e.g., Preach v. Monter Rainbow (1993) 12 Cal.App.4th 1441, 1451; Thompson v. Williams (1989) 211 Cal.App.3d 566.) Accordingly, Graphics’ discovery responses which were conveniently amended after the Motion was filed should therefore be disregarded. 11 RESPONSE TO OPPOSITION EVIDENTIARY OBJECTIONS A T T O R N E Y S A T L A W oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O the portion of that useful life which elapsed before February 4, 2011.” IOE, Exhibit “D”, Roberts Decl., 9 6. The Interrogatory and particularly the use of the prior answer here is improper because it seeks to force Graphics to choose between protecting its defense against Welsh and its claim against Arlon. C.f., Montrose Chemical Company v. Superior Court (Canadian Universal Insurance Co.) 6 Cal.4" 287, 301- 02 (1993) (Insurer may not try issues of duty to indemnify by means of declaratory relief action while underlying case is ongoing). SDF No. 10 8. Cross- Defendants are only obligated under the APA to “indemnify Cross- Complainants for any ‘claims, liabilities, losses, damages, costs and expenses, including without limitation [] reasonable’ attorneys fees related to Cross- Defendants’ use of the Premises prior to the Closing Date of the APA.” Index Ex. 6 SAXC, qe, 13, 39 [quoting text]; Index Ex. 3 [Asset Objection. This is not a fact, it is a quote, and only a partial quote of the APA, which speaks for itself and Defendants misrepresent its terms in an attempt to minimize the scope of their potential liability. Objection. Irrelevant. Because the APA requires indemnification for any loss related to the “operation of the business” before the Closing Date, and the Welsh claim included the failure to replace It is undisputed that Arlon has no obligation to indemnify Graphics for claims that pertain to the period after the Closing Date. Graphics only dispute is that it argues (without evidence and based on a tortured interpretation of the APA) that the claims at issue “pertain to” the period prior to the Closing Date. As set forth in the Reply, Graphics’ interpretation of the APA — that Arlon Sustained: Overruled: 12 RESPONSE TO OPPOSITION EVIDENTIARY OBJECTIONS A T T O R N E Y S A T L A W oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O Purchase Agreement]; p. 60, §10.2(a)(iii). systems of the factory which had reached the end of their useful life, and because Arlon admits it operated that factory and extracted 22 years of those systems’ useful lives, this “fact” is irrelevant. SDF No. 13 should be forever responsible to indemnify Graphics for the aging or degradation of all building components — would lead to absurd results. 9. On or about January 18, 2011, Plaintiffs (Landlords) consented to the assignment of the Lease to Cross-Complainants, agreeing that: (1) Cross- Defendants were not in breach of any of their Lease obligations; (2) all of Cross- Defendants’ Lease obligations were satisfied; and (3) Cross- Defendants were not in default in the performance of any of the Lease covenants. Index, Ex. 2 [01/18/11 Letter Agreement]; Index Ex. 7 [J. Welsh Depo. III], p. 119:8-20; Index Ex. 12 [Graphics Response to Cross- Defendants’ RFAs (Set 1)], Response No. 31; Index Ex. 17 [James Welsh’s Amended Response to Cross- Defendants’ RFAs (Set 1)], Response No. 34; Index Ex. 9 [Trombino Depo.], p. 104:8-14. Objection. Duplicative. This is duplicative of No. 3. Objection. Irrelevant. Because the APA requires indemnification for any loss related to the “operation of the business” before the Closing Date, and the Welsh claim included the failure to replace systems of the factory which had reached the end of their useful life, and because Arlon admits it operated that factory and extracted 22 years of those systems’ useful lives, this “fact” is irrelevant. It does not matter if there was no breach then because the breach alleged after moveout included failure to replace systems at the end of their useful life and whether or not breach lay January 18, 2011 has nothing to do with whether a significant portion of the systems’ useful lives ad been expended before that Re: Duplicative: The fact is not “duplicative” since it pertains to a different issue/cause of action. “In a motion for summary judgment/ adjudication, where ‘undisputed facts’ pertain to more than one claim, issue or defense, these facts (together with the supporting evidence) must be repeated for each issue.” Weil & Brown, Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2017), Ch. 10-C, q10:96.7 Re: Relevance: The Landlord’s Consent agreement is arguably the most relevant document in this entire case. It absolves Graphics from all liability for any damages that predate the Closing Date. It further acknowledges that, as of the date of the Sustained: Overruled: 13 RESPONSE TO OPPOSITION EVIDENTIARY OBJECTIONS A T T O R N E Y S A T L A W oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O date. SDF No. 14 assignment, Arlon was not in breach of any obligation under the Lease or otherwise in default under the Lease. Having waived all claims for any damages arising prior to the Closing Date, the Plaintiffs’ claims in this action necessarily pertain to the period after the Closing Date. Because it is undisputed that Arlon has no obligation to indemnify Graphics for claims that pertain to the period after the Closing Date, summary judgment is appropriate. As set forth in the Reply, Graphics’ interpretation of the APA — that Arlon should be forever responsible to indemnify Graphics for the aging or degradation of all building components — would lead to absurd results. 10. In the January 18, 2011 letter agreement, Plaintiffs expressly agreed [underscore added; bold in original]: Lessor hereby acknowledges that, notwithstanding anything to the contrary in the Lease Objection. Duplicative. This is identical to No. 4. Objection. Irrelevant. 1) Because the APA requires indemnification for any loss related to the “operation of the business” before the Closing Date, and the Welsh claim included Re: Duplicative: The fact is not “duplicative” since it pertains to a different issue/cause of action. “In a motion for summary judgment/ adjudication, where ‘undisputed facts’ pertain to more than one claim, issue or defense, Sustained: Overruled: 14 RESPONSE TO OPPOSITION EVIDENTIARY OBJECTIONS A T T O R N E Y S A T L A W oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O or the Guaranty (hereinafter defined), effective as of the Closing Date, ... (¢) Purchaser [Cross- Complainants] shall be responsible for all obligations arising out of or in connection with the Lease from and after the Closing Date; provided, however, (a) Purchaser shall have no liability for obligations arising prior to the Closing Date, and (b) as between Purchaser and Lessee, nothing in this letter agreement shall expand or diminish the rights and obligations of Purchaser and Lessee under the Agreement. Index, Ex. 2 [01/18/11 Letter Agreement]; Index Ex. 7 [J. Welsh Depo. III], p. 119:8-20; Index Ex. 12 [Graphics Response to Cross- Defendants’ RFAs (Set 1)], Response No. 31; Index Ex. 17 [James Welsh’s Amended Response to Cross- Defendants’ RFAs (Set 1)], Response No. 34; Index Ex. 9 [Trombino Depo.], p. 104:8-14. the failure to replace systems of the factory which had reached the end of their useful life, and because Arlon admits it operated that factory and extracted 22 years of those systems’ useful lives, this “fact” is irrelevant. It does not matter if there was no breach then because the breach alleged after moveout included failure to replace systems at the end of their useful life and whether or not breach lay January 18, 2011 has nothing to do with whether a significant portion of the systems’ useful lives had been expended before that date. 2) this Motion concerns Cross- Defendants’ liability to Graphics, and Plaintiffs have no ability to release Cross- Defendants’ liability to Graphics, making this “fact” non sequiter. SDF No. 15 these facts (together with the supporting evidence) must be repeated for each issue.” Weil & Brown, Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2017), Ch. 10-C, q10:96.7 Re: Relevance: The Landlord’s Consent agreement is arguably the most relevant document in this entire case. It absolves Graphics from all liability for any damages that predate the Closing Date. It further acknowledges that, as of the date of the assignment, Arlon was not in breach of any obligation under the Lease or otherwise in default under the Lease. Having waived all claims for any damages arising prior to the Closing Date, the Plaintiffs’ claims in this action necessarily pertain to the period after the Closing Date. Because it is undisputed that Arlon has no obligation to indemnify Graphics for claims that pertain to the period after the Closing Date, summary judgment is appropriate. 15 RESPONSE TO OPPOSITION EVIDENTIARY OBJECTIONS A T T O R N E Y S A T L A W oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O As set forth in the Reply, Graphics’ interpretation of the APA — that Arlon should be forever responsible to indemnify Graphics for the aging or degradation of all building components — would lead to absurd results. 11. In this action, Plaintiffs do not contend that any of their alleged damages arose prior to the February 4, 2011 Closing Date. Index Ex. 15 [James Welsh’s Second Amended and Supplemental Response to Cross-Defendants’ Special Interrogatories (Set One)], Response Nos. 1, 15 [“Responding Party has made no such contention in this case.”] and 26; see generally, Index Ex. 16 [James Welsh’s Response to Cross-Defendants’ Special Interrogatories (Set 2)], Response Nos. 77-126; Index Ex. 7 [J. Welsh Depo. 111], pp. 122:21-123:5; Index Ex. 8 [N. Welsh Depo.], p. 11:19-23; Bollard Decl., 420; Index, Ex. 19 [06/28/17 Letter from Plaintiffs’ counsel], pp. 1-2; Bollard Decl., 19; Index, Ex. 18 [05/16/17 Letter from Plaintiffs’ counsel], p. 2. Objection. Irrelevant. Because the APA requires indemnification for any loss related to the “operation of the business” before the Closing Date, and the Welsh claim included the failure to replace systems of the factory which had reached the end of their useful life, and because Arlon admits it operated that factory and extracted 22 years of those systems’ useful lives, this “fact” is irrelevant. SDF No. 16 Plaintiffs’ admissions that they are not making any claims related to the period prior to the Closing Date are highly relevant. Plaintiffs acknowledge that they waived all claims that accrued prior to the Closing Date. If Plaintiffs’ claims post- date the Closing Date, Arlon has no obligation to indemnify Graphics in this action and summary judgment is appropriate. As set forth in the Reply, Graphics’ interpretation of the APA — that Arlon should be forever responsible to indemnify Graphics for the aging or degradation of all building components — would lead to absurd results. Sustained: Overruled: 16 RESPONSE TO OPPOSITION EVIDENTIARY OBJECTIONS A T T O R N E Y S A T L A W oe 0 N N U t A W N N O N O N O N N O N EE em em em em pm j m pm md pe 12; There is no evidence that any of the damages at issue in this action arose prior to the February 4, 2011 Closing Date. Index, Ex. 2 [01/18/11 Letter Agreement]; Index Ex. 12 [Arlon Graphics’ Response to Cross- Defendants’ RFAs (Set 1)], Response Nos. 3 [“Responding Party admits that the PREMISES were in ‘good repair’ on February 4, 2011.”], and 14-24; Index Ex. 13 [Arlon Graphics’ Response to Cross- Defendants’ Special Interrogatories (Set One)], Response Nos. 9- 11 [“The PREMISES were in ‘good condition’ and Plaintiffs’ alleged damages do not exist. . . .”’], and 38- 41; Index Ex. 9 [Trombino Depo.], p. 105:3-10; Index Ex. 11 [Nicholson Depo.], p. 166: 15-17; Index Ex. 7 [J. Welsh Depo.], pp. 122:21-123:5; Index Ex. 8 [N. Welsh Depo.], p. 11:19-23; Index Ex. 15 [James Welsh’s Second Amended and Supplemental Response to Cross- Defendants’ Special Interrogatories (Set One)], Response Nos. 1, 15 and 26; see generally, Index Ex. 16 [James Welsh’s Response to Cross- Defendants’ Special Objection. Irrelevant. This “fact” is irrelevant. It does not matter if there was no breach then because the breach alleged after moveout included failure to replace systems at the end of their useful life and whether or not breach lay January 18, 2011 has nothing to do with whether a significant portion of the systems’ useful lives had been expended before that date. Objection. Misstates the Evidence. The evidence is misstated because the quotation of Arlon Graphics’ Response to Cross- Defendants’ Special Interrogatories (Set One)], Response Nos. 9- 11 elides the language “In the alternative, to the extent a trier of fact finds that those alleged damages do exist, they are the responsibility of Propounding Party in proportion to the time for which Propounding Party leased and otherwise used the PREMISES and/or the extent to which the alleged damages are found to have accrued during Propounding Party’s leasing and use of the PREMISES.” ROA #177 (Arlon’s Exhibits) at PDF pages 251-53 of 479. The Re: Relevance: Plaintiffs’ admissions that they are not making any claims related to the period prior to the Closing Date are highly relevant. Plaintiffs acknowledge that they waived all claims that accrued prior to the Closing Date. If Plaintiffs’ claims post- date the Closing Date, Arlon has no obligation to indemnify Graphics in this action and summary judgment is appropriate. Likewise, Graphics own admissions that the Premises were in good condition and repair on the Closing Date are highly relevant since, if there were no damages to the Premises prior to the Closing Date, Arlon has no obligation to indemnify Graphics in this action and summary judgment is appropriate. As set forth in the Reply, Graphics’ interpretation of the APA — that Arlon should be forever responsible to indemnify Graphics for the aging or degradation of all building components — would lead to absurd results. Sustained: Overruled: 17 RESPONSE TO OPPOSITION EVIDENTIARY OBJECTIONS A T T O R N E Y S A T L A W oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O Interrogatories (Set 2)], Response Nos. 77-126; Index Ex. 14 [James Welsh’s Response to Cross-Defendants’ Form Interrogatories (Set One)], No. 17.1; Bollard Decl., 920; Index, Ex. 19 [06/28/17 Letter from Plaintiffs’ counsel], pp. 1-2; Bollard Decl., 19; Index, Ex. 18 [05/16/17 Letter from Plaintiffs’ counsel], p. 2. Interrogatory and particularly the use of it here is improper because it seeks to force Graphics to choose between protecting its defense against Welsh and its claim against Arlon. C.f., Montrose Chemical Company v. Superior Court (Canadian Universal Insurance Co.) 6 Cal.4™ 287, 301-02 (1993) (Insurer may not try issues of duty to indemnify by means of declaratory relief action while underlying case is ongoing). Objection. Misstates the Evidence. The evidence is misstated because Graphics’ Responses to Cross- Defendants’ RFAs (Set 1) Nos. 3 and 14-24 were amended and no longer include the quoted language, but rather state, inter alia, that “[r]esponding Party and/or Responding Party’s parent relied on the Warranty of Propounding Party in Section 4.5(b) as to the condition of the PREMISES as of February 4, 2011. To the extent a trier of fact determines Plaintiffs’ claims do exist, the responsibility for any liability flowing from that condition is that of Propounding Party Re: Misstates the Evidence: Graphics’ speculation that a trier of fact may find damages that predate the Closing is insufficient to overcome summary judgment. A party opposing summary judgment must produce substantial responsive evidence to refute the facts established by the moving party. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) Speculation and the hope of favorable future testimony are not sufficient to satisfy that burden. (Doe v. Salesian Soc. (2008) 159 Cal.App.4th 474, 481.) In addition, a party cannot create a triable issue of fact by contradicting prior sworn statements. (See, e.g., Preach v. Monter Rainbow (1993) 12 Cal.App.4th 1441, 1451; Thompson v. Williams (1989) 211 Cal.App.3d 566.) Accordingly, Graphics’ discovery responses which were conveniently amended after the Motion was filed should be disregarded. There is no allegation in Graphics’ cross- complaint related to the 18 RESPONSE TO OPPOSITION EVIDENTIARY OBJECTIONS A T T O R N E Y S A T L A W oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O pursuant to provisions in the APA including but not limited to 2.11(a) and 4.5(b). . . .. The condition of the factory was consistent with the usual and expected wear and tear for a factory of that age which had been used for like purposes. This includes but is not limited to Plaintiffs’ contention that various components had reached the end of their useful life because if Responding Party is held to have to replace components that reached the end of their useful life, then Propounding Party is liable to Responding Party for the portion of that useful life which elapsed before February 4, 2011.” IOE, Exhibit “D”, Roberts Decl., 9 6. The Interrogatory and particularly the use of the prior answer here is improper because it seeks to force Graphics to choose between protecting its defense against Welsh and its claim against Arlon. C.f., Montrose Chemical Company v. Superior Court (Canadian Universal Insurance Co.) 6 Cal.4" 287, 301- 02 (1993) (Insurer may not try issues of duty to indemnify by means of declaratory relief action while underlying case is ongoing). breach of a warranty under Section 4.5(b) and it cannot now provide a basis for avoiding summary judgment. (See, Laabs v. City of Victorville (2008) 163 Cal. App.4th 1242, 1258; Nieto v. Blue Shield of Calif. Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74.) 19 RESPONSE TO OPPOSITION EVIDENTIARY OBJECTIONS A T T O R N E Y S A T L A W oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O SDF No. 17 13. The Lease Assignment provides that Cross-Complainant assumed all Lease rights and obligations, liabilities, duties, rights and benefits. Index Ex. 1 [Lease Assignment], 1. Objection. Irrelevant. 1) Because the APA requires indemnification for any loss related to the “operation of the business” before the Closing Date, and the Welsh claim included the failure to replace systems of the factory which had reached the end of their useful life, and because Arlon admits it operated that factory and extracted 22 years of those systems’ useful lives, this “fact” is irrelevant. It does not matter if there was no breach then because the breach alleged after moveout included failure to replace systems at the end of their useful life and whether or not breach lay January 18, 2011 has nothing to do with whether a significant portion of the systems’ useful lives had been expended before that date. 2) this Motion concerns Cross- Defendants’ liability to Graphics, and Plaintiffs have no ability to release Cross- Defendants’ liability to Graphics, making this “fact” non sequiter SDF No. 21 The Lease Assignment is highly relevant to establishing that Graphics assumed all lease rights and obligations as of the Closing Date, including the obligation to maintain, repair, restore or replace the building components during the period of its occupancy and surrender the Premises in good condition. As set forth in the Reply, Graphics’ interpretation of the APA — that Arlon should be forever responsible to indemnify Graphics for the aging or degradation of all building components — would lead to absurd results. Sustained: Overruled: 20 RESPONSE TO OPPOSITION EVIDENTIARY OBJECTIONS A T T O R N E Y S A T L A W oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O 14. After assuming the Lease obligations, Cross-Complainants did make repairs to the Premises. Index Ex. 10 [Nicholson Depo.], pp. 93:8-24, 100:17-101:11, 122:14- 123:14, 128:12-18; Index Ex. 9 [Trombino Depo.], pp. 48:7-22, 50:4-16; Index Ex. 13 [Arlon Graphics’ Response to Cross- Defendants’ Special Interrogatories (Set One)], Response No. 38; Index Ex. 20 [McCormick Decl. in Support of Plaintiffs’ Opposition to Arlon Graphics’ Motion for Summary Judgment], 198-9. Objection. Irrelevant. This Motion is about whether Movants enjoy liability for the Welsh claim that throughout the term of the Lease the useful life of factory components was dissipated because the APA requires Movants to indemnify Graphics for any claim, liability, loss, damages, cost or expenses related to the “operation of the business” before the Closing Date, not about whether Cross- Complainants made repairs. SDF No. 21 The fact that Graphics did make repairs to the Premises is relevant to the running of the statute of limitations on the negligence claim. If, as Graphics argues: (1) Arlon breached a tort duty to Graphics to maintain the leasehold in good condition; and (2) the statute of limitations begins to accrue once Graphics was actually harmed, then Graphics was harmed the minute it was forced to make repairs to the Premises. The fact that Graphics undertook to make repairs also reveals that Graphics always understood that it assumed responsibility for the maintenance and repair of the building components after the Closing Date, and that it never interpreted the APA to hold Arlon responsible for any aging or degradation over time of those components. Sustained: Overruled: 21 RESPONSE TO OPPOSITION EVIDENTIARY OBJECTIONS A T T O R N E Y S A T L A W oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O 13 The Lease Assignment provides that Cross-Complainant assumed all Lease rights and obligations, liabilities, duties, rights and benefits. Index Ex. 1 [Lease Assignment], 1. Objection. Irrelevant. 1) Because the APA requires indemnification for any loss related to the “operation of the business” before the Closing Date, and the Welsh claim included the failure to replace systems of the factory which had reached the end of their useful life, and because Arlon admits it operated that factory and extracted 22 years of those systems’ useful lives, this “fact” is irrelevant. It does not matter if there was no breach then because the breach alleged after moveout included failure to replace systems at the end of their useful life and whether or not breach lay January 18, 2011 has nothing to do with whether a significant portion of the systems’ useful lives had been expended before that date. 2) this Motion concerns Cross- Defendants’ liability to Graphics, and Plaintiffs have no ability to release Cross- Defendants’ liability to Graphics, making this “fact” non sequiter SDF No. 27 The Lease Assignment is highly relevant to establishing that Graphics assumed all lease rights and obligations as of the Closing Date, including the obligation to maintain, repair, restore or replace the building components during the period of its occupancy and surrender the Premises in good condition. It is also relevant to establishing that the parties’ relationship was governed by contract, the duties owed were purely contractual in nature, and the contract contains an express limitation on tort liability. As set forth in the Reply, Graphics’ interpretation of the APA — that Arlon should be forever responsible to indemnify Graphics for the aging or degradation of all building components — would lead to absurd results. Sustained: Overruled: 22 RESPONSE TO OPPOSITION EVIDENTIARY OBJECTIONS A T T O R N E Y S A T L A W oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O 16. After assuming | Objection. Irrelevant. | The fact that Graphics Sustained: the Lease obligations, This Motion is about undertook to actually Overruled: Cross-Complainants did | whether Movants enjoy | make repairs reveals that make repairs to the liability for the Welsh Graphics always Premises. claim that throughout understood that it the term of the Lease the | assumed responsibility Index Ex. 10 [Nicholson | useful life of factory for the maintenance and Depo.], pp. 93:8-24, components was repair of the building 100:17-101:11, 122:14- | dissipated because the components after the 123:14, 128:12-18; APA requires Movants | Closing Date, and that it Index Ex. 9 [Trombino | to indemnify Graphics never interpreted the Depo.], pp. 48:7-22, for any claim, liability, | APA to hold Arlon 50:4-16; Index Ex. 13 loss, damages, cost or responsible for any [Arlon Graphics’ expenses related to the aging or degradation Response to Cross- “operation of the over time of those Defendants’ Special business” before the components. Interrogatories (Set Closing Date, not about One)], Response No. 38; | whether Cross- Index Ex. 20 Complainants made [McCormick Decl. in repairs. Support of Plaintiffs’ Opposition to Arlon SDF No. 28 Graphics’ Motion for Summary Judgment], 198-9. 17. On or about Objection. Irrelevant. | The Landlords’ Consent | Sustained:____ January 18, 2011, Because the APA is relevant to establish Overruled: Plaintiffs (Landlords) consented to the assignment of the Lease to Cross-Complainants, agreeing that: (1) Cross- Defendants were not in breach of any of their Lease obligations; (2) all of Cross- Defendants’ Lease obligations were satisfied; and (3) Cross- Defendants were not in default in the performance of any of the Lease covenants. Index, Ex. 2 [01/18/11 Letter Agreement]; Index Ex. 7 [J. Welsh requires indemnification for any loss related to the “operation of the business” before the Closing Date, and the Welsh claim included the failure to replace systems of the factory which had reached the end of their useful life, and because Arlon admits it operated that factory and extracted 22 years of those systems’ useful lives, this “fact” is irrelevant. It does not matter if there was no breach then because the breach alleged after that Plaintiffs expressly waived their right to damages arising prior to the Closing Date and released Cross- Defendants from any liability for damages that existed prior to the Closing Date. Thus, any damage amount representing disrepair that existed prior to the Closing Date would simply reduce Cross- Complainants’ liability to Plaintiffs in the main action. It does not give rise to a separate action for comparative 23 RESPONSE TO OPPOSITION EVIDENTIARY OBJECTIONS A T T O R N E Y S A T L A W oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O Depo. III], p. 119:8-20; Index Ex. 12 [Graphics Response to Cross- Defendants’ RFAs (Set 1)], Response No. 31; Index Ex. 17 [James Welsh’s Amended Response to Cross- Defendants’ RFAs (Set 1)], Response No. 34; Index Ex. 9 [Trombino Depo.], p. 104:8-14. moveout included failure to replace systems at the end of their useful life and whether or not breach lay January 18, 2011 has nothing to do with whether a significant portion of the systems’ useful lives had been expended before that date. Objection. Irrelevant. This proffered fact has nothing to do with the indemnity relation between Cross- Defendants and Cross- Complainants because it is between Cross- Defendants and Plaintiffs. SDF No. 30 negligence against Cross-Defendants. As set forth in the Reply, Graphics’ interpretation of the APA — that Arlon should be forever responsible to indemnify Graphics for the aging or degradation of all building components — would lead to absurd results. 18. In the January 18, 2011 letter agreement, Plaintiffs expressly agreed [underscore added; bold in original]: Lessor hereby acknowledges that, notwithstanding anything to the contrary in the Lease or the Guaranty (hereinafter defined), effective as of the Closing Date, ... (¢) Purchaser [Cross- Complainants] shall be responsible for all obligations arising out of or in Objection. Irrelevant. 1) Because the APA requires indemnification for any loss related to the “operation of the business” before the Closing Date, and the Welsh claim included the failure to replace systems of the factory which had reached the end of their useful life, and because Arlon admits it operated that factory and extracted 22 years of those systems’ useful lives, this “fact” is irrelevant. It does not matter if there was no breach then because the breach alleged after The Landlords’ Consent is relevant to establish that Plaintiffs expressly waived their right to damages arising prior to the Closing Date and released Cross- Defendants from any liability for damages that existed prior to the Closing Date. Thus, any damage amount representing disrepair that existed prior to the Closing Date would simply reduce Cross- Complainants’ liability to Plaintiffs in the main action. It does not give rise to a separate action for comparative Sustained: Overruled: 24 RESPONSE TO OPPOSITION EVIDENTIARY OBJECTIONS A T T O R N E Y S A T L A W oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O connection with the Lease from and after the Closing Date; provided, however, (a) Purchaser shall have no liability for obligations arising prior to the Closing Date, and (b) as between Purchaser and Lessee, nothing in this letter agreement shall expand or diminish the rights and obligations of Purchaser and Lessee under the Agreement. Index, Ex. 2 [01/18/11 Letter Agreement]; Index Ex. 7 [J. Welsh Depo. III], p. 119:8-20; Index Ex. 12 [Graphics Response to Cross- Defendants’ RFAs (Set 1)], Response No. 31; Index Ex. 17 [James Welsh’s Amended Response to Cross- Defendants’ RFAs (Set 1)], Response No. 34; Index Ex. 9 [Trombino Depo.], p. 104:8-14. moveout included failure to replace systems at the end of their useful life and whether or not breach lay January 18, 2011 has nothing to do with whether a significant portion of the systems’ useful lives had been expended before that date. 2) this Motion concerns Cross- Defendants’ liability to Graphics, and Plaintiffs have no ability to release Cross- Defendants’ liability to Graphics, making this “fact” non sequiter. SDF No. 31 negligence against Cross-Defendants. As set forth in the Reply, Graphics’ interpretation of the APA — that Arlon should be forever responsible to indemnify Graphics for the aging or degradation of all building components — would lead to absurd results. 19. Cross- Defendants are only obligated under the APA to “indemnify Cross- Complainants for any ‘claims, liabilities, losses, damages, costs and expenses, including without limitation [] reasonable’ attorneys fees related to Cross- Objection. This is not a fact, it is a quote, and only a partial quote of the APA, which speaks for itself and Defendants misrepresent its terms in an attempt to minimize the scope of their potential liability. Objection. Irrelevant. Because the APA The fact that the APA contains the quoted language establishes that the parties expressly delineated their respective indemnification obligations with respect to the Premises in the APA. Because the APA contains the entire Sustained: Overruled: 25 RESPONSE TO OPPOSITION EVIDENTIARY OBJECTIONS A T T O R N E Y S A T L A W oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O Defendants’ use of the Premises prior to the Closing Date of the APA.” 34. Undisputed. Index Ex. 6 SAXC, 96, 13, 39 [quoting text]; Index Ex. 3 [Asset Purchase Agreement]; p. 60, §10.2(a)(iii). requires indemnification for any loss related to the “operation of the business” before the Closing Date, and the Welsh claim included the failure to replace systems of the factory which had reached the end of their useful life, and because Arlon admits it operated that factory and extracted 22 years of those systems’ useful lives, this “fact” is irrelevant. SDF No. 32 agreement with respect to indemnification for the very damages alleged in this case, equitable indemnity principles are preempted. (E. L. White, Inc. v. City of Huntington Beach (1978) 21 Cal.3d 497, 508.) 20. On or about January 18, 2011, Plaintiffs (Landlords) consented to the assignment of the Lease to Cross-Complainants, agreeing that: (1) Cross- Defendants were not in breach of any of their Lease obligations; (2) all of Cross- Defendants’ Lease obligations were satisfied; and (3) Cross- Defendants were not in default in the performance of any of the Lease covenants. Index, Ex. 2 [01/18/11 Letter Agreement]; Index Ex. 7 [J. Welsh Depo. III], p. 119:8-20; Index Ex. 12 [Graphics Response to Cross- Defendants’ RFAs (Set 1)], Response No. 31; Index Ex. 17 [James Welsh’s Amended Objection. Irrelevant. Because the APA requires indemnification for any loss related to the “operation of the business” before the Closing Date, and the Welsh claim included the failure to replace systems of the factory which had reached the end of their useful life, and because Arlon admits it operated that factory and extracted 22 years of those systems’ useful lives, this “fact” is irrelevant. It does not matter if there was no breach then because the breach alleged after moveout included failure to replace systems at the end of their useful life and whether or not breach lay January 18, 2011 has nothing to do with The equitable indemnity claims fail for the same reason that the contract claims fail. The contract claims fail since Plaintiffs are not claiming (and cannot claim) damages in this action for any harm to the Premises which arose prior to the Closing Date. The Landlord’s Consent is relevant to establishing Plaintiffs’ express waiver of claims that predate the Close of Escrow. In addition, the Landlord’s Consent supports the fact that the parties expressly delineated their respective indemnification obligations with respect to the Premises in the Sustained: Overruled: 26 RESPONSE TO OPPOSITION EVIDENTIARY OBJECTIONS A T T O R N E Y S A T L A W oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O Response to Cross- Defendants’ RFAs (Set 1)], Response No. 34; Index Ex. 9 [Trombino Depo.], p. 104:8-14. whether a significant portion of the systems’ useful lives had been expended before that date. Objection. Irrelevant. This proffered fact has nothing to do with the indemnity relation between Cross- Defendants and Cross- Complainants because it is between Cross- Defendants and Plaintiffs. Objection. Irrelevant. See Objection No. 35 APA. Because the APA contains the entire agreement with respect to indemnification for the very damages alleged in this case, equitable indemnity principles are preempted. (E. L. White, Inc. v. City of Huntington Beach (1978) 21 Cal.3d 497, 508.) 21. In the January 18, 2011 letter agreement, Plaintiffs expressly agreed [underscore added; bold in original]: Lessor hereby acknowledges that, notwithstanding anything to the contrary in the Lease or the Guaranty (hereinafter defined), effective as of the Closing Date, ... (¢) Purchaser [Cross- Complainants] shall be responsible for all obligations arising out of or in connection with the Lease from and after the Closing Date; provided, however, (a) Purchaser shall have no liability for Objection. Irrelevant. 1) Because the APA requires indemnification for any loss related to the “operation of the business” before the Closing Date, and the Welsh claim included the failure to replace systems of the factory which had reached the end of their useful life, and because Arlon admits it operated that factory and extracted 22 years of those systems’ useful lives, this “fact” is irrelevant. It does not matter if there was no breach then because the breach alleged after moveout included failure to replace systems at the end of their useful life and whether or not breach lay January 18, 2011 has The equitable indemnity claims fail for the same reason that the contract claims fail. The contract claim fails since Plaintiffs are not claiming (and cannot claim) damages in this action for any harm to the Premises which arose prior to the Closing Date. The Landlord’s Consent is relevant to establishing Plaintiffs’ express waiver of claims that predate the Close of Escrow. In addition, the Landlord’s Consent supports the fact that the parties expressly delineated their respective indemnification obligations with respect Sustained: Overruled: 27 RESPONSE TO OPPOSITION EVIDENTIARY OBJECTIONS A T T O R N E Y S A T L A W oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O obligations arising prior to the Closing Date, and (b) as between Purchaser and Lessee, nothing in this letter agreement shall expand or diminish the rights and obligations of Purchaser and Lessee under the Agreement. Index, Ex. 2 [01/18/11 Letter Agreement]; Index Ex. 7 [J. Welsh Depo. III], p. 119:8-20; Index Ex. 12 [Graphics Response to Cross- Defendants’ RFAs (Set 1)], Response No. 31; Index Ex. 17 [James Welsh’s Amended Response to Cross- Defendants’ RFAs (Set 1)], Response No. 34; Index Ex. 9 [Trombino Depo.], p. 104:8-14. nothing to do with whether a significant portion of the systems’ useful lives had been expended before that date. 2) this Motion concerns Cross- Defendants’ liability to Graphics, and Plaintiffs have no ability to release Cross- Defendants’ liability to Graphics, making this “fact” non sequiter. Objection. Irrelevant. See Objection No. 36 to the Premises in the APA. Because the APA contains the entire agreement with respect to indemnification for the very damages alleged in this case, equitable indemnity principles are preempted. (E. L. White, Inc. v. City of Huntington Beach (1978) 21 Cal.3d 497, 508.) 22. In this action, Plaintiffs do not contend that any of their alleged damages arose prior to the February 4, 2011 Closing Date. Index Ex. 15 [James Welsh’s Second Amended and Supplemental Response to Cross-Defendants’ Special Interrogatories (Set One)], Response Nos. 1, 15 [“Responding Party has made no such contention in this case.”] and 26; see generally, Objection. Irrelevant. Because the APA requires indemnification for any loss related to the “operation of the business” before the Closing Date, and the Welsh claim included the failure to replace systems of the factory which had reached the end of their useful life, and because Arlon admits it operated that factory and extracted 22 years of those systems’ useful lives, this “fact” is irrelevant. The equitable indemnity claims fail for the same reason that the contract claims fail. The contract claims fail since there is no evidence that there was any actionable damage prior to the Closing Date. Plaintiffs’ admissions that they are not making any claims related to the period prior to the Closing Date are highly relevant. Plaintiffs acknowledge that they waived all claims that Sustained: Overruled: 28 RESPONSE TO OPPOSITION EVIDENTIARY OBJECTIONS A T T O R N E Y S A T L A W oe 0 N N U t A W N N O N O N O N N O N EE em em em em pm j m pm md pe Index Ex. 16 [James Welsh’s Response to Cross-Defendants’ Special Interrogatories (Set 2)], Response Nos. 77-126; Index Ex. 7 [J. Welsh Depo. 111], pp. 122:21- 123:5; Index Ex. 8 [N. Welsh Depo.], p. 11:19-23; Bollard Decl., 920; Index, Ex. 19 [06/28/17 Letter from Plaintiffs’ counsel], pp. 1-2; Bollard Decl., 19; Index, Ex. 18 [05/16/17 Letter from Plaintiffs’ counsel], p. 2. Objection. Irrelevant. See Objection No. 37 accrued prior to the Closing Date. If Plaintiffs’ claims post- date the Closing Date, Arlon has no obligation to indemnify Graphics in this action and summary judgment is appropriate. 23. There is no evidence that any of the damages at issue in this action arose prior to the February 4, 2011 Closing Date. Index, Ex. 2 [01/18/11 Letter Agreement]; Index Ex. 12 [Arlon Graphics’ Response to Cross- Defendants’ RFAs (Set 1)], Response Nos. 3 [“Responding Party admits that the PREMISES were in ‘good repair’ on February 4, 2011.”], and 14-24; Index Ex. 13 [Arlon Graphics’ Response to Cross- Defendants’ Special Interrogatories (Set One)], Response Nos. 9- 11 [“The PREMISES were in ‘good condition’ and Plaintiffs’ alleged damages do not exist. . . .’], and 38- 41; Index Objection. Irrelevant. This “fact” is irrelevant. It does not matter if there was no breach then because the breach alleged after moveout included failure to replace systems at the end of their useful life and whether or not breach lay January 18, 2011 has nothing to do with whether a significant portion of the systems’ useful lives had been expended before that date. Objection. Misstates the Evidence. The evidence is misstated because the quotation of Arlon Graphics’ Response to Cross- Defendants’ Special Interrogatories (Set One)], Response Nos. 9- 11 elides the language “In the alternative, to the Re: Relevance: Even if equitable indemnity claims were proper, the claims fail for the same reason that the contract claims fail. The contract claims fail since there is no evidence that there was any actionable damage prior to the Closing Date. Plaintiffs’ admissions that they are not making any claims related to the period prior to the Closing Date are highly relevant. Plaintiffs acknowledge that they waived all claims that accrued prior to the Closing Date. If Plaintiffs’ claims post- date the Closing Date, Arlon has no obligation to indemnify Graphics in this action and summary judgment is Sustained: Overruled: 29 RESPONSE TO OPPOSITION EVIDENTIARY OBJECTIONS A T T O R N E Y S A T L A W oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O Ex. 9 [Trombino Depo.], p. 105:3-10; Index Ex. 11 [Nicholson Depo.], p. 166: 15-17; Index Ex. 7 [J. Welsh Depo.], pp. 122:21-123:5; Index Ex. 8 [N. Welsh Depo.], p. 11:19-23; Index Ex. 15 [James Welsh’s Second Amended and Supplemental Response to Cross- Defendants’ Special Interrogatories (Set One)], Response Nos. 1, 15 and 26; see generally, Index Ex. 16 [James Welsh’s Response to Cross- Defendants’ Special Interrogatories (Set 2)], Response Nos. 77-126; Index Ex. 14 [James Welsh’s Response to Cross-Defendants’ Form Interrogatories (Set One)], No. 17.1; Bollard Decl., 920; Index, Ex. 19 [06/28/17 Letter from Plaintiffs’ counsel], pp. 1-2; Bollard Decl., 19; Index, Ex. 18 [05/16/17 Letter from Plaintiffs’ counsel], p. 2. extent a trier of fact finds that those alleged damages do exist, they are the responsibility of Propounding Party in proportion to the time for which Propounding Party leased and otherwise used the PREMISES and/or the extent to which the alleged damages are found to have accrued during Propounding Party’s leasing and use of the PREMISES.” ROA #177 (Arlon’s Exhibits) at PDF pages 251-53 of 479. The Interrogatory and particularly the use of it here is improper because it seeks to force Graphics to choose between protecting its defense against Welsh and its claim against Arlon. C.f., Montrose Chemical Company v. Superior Court (Canadian Universal Insurance Co.) 6 Cal.4™ 287, 301-02 (1993) (Insurer may not try issues of duty to indemnify by means of declaratory relief action while underlying case is ongoing). Objection. Misstates the Evidence. The evidence is misstated because Graphics’ Responses to Cross- Defendants’ RFAs (Set 1) Nos. 3 and 14-24 were amended and no appropriate. Likewise, Graphics own admissions that the Premises were in good condition and repair on the Closing Date are highly relevant since, if there were no damages to the Premises prior to the Closing Date, Arlon has no obligation to indemnify Graphics in this action and summary judgment is appropriate. Re: Misstates the Evidence: Graphics’ speculation that a trier of fact may find damages that predate the Closing is insufficient to overcome summary judgment. A party opposing summary judgment must produce substantial responsive evidence to refute the facts established by the moving party. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) Speculation and the hope of favorable future testimony are not sufficient to satisfy that burden. (Doe v. Salesian Soc. (2008) 159 Cal. App.4th 474, 481.) In addition, a party cannot create a triable issue of fact by contradicting prior 30 RESPONSE TO OPPOSITION EVIDENTIARY OBJECTIONS A T T O R N E Y S A T L A W oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O longer include the quoted language, but rather state, inter alia, that “[r]esponding Party and/or Responding Party’s parent relied on the Warranty of Propounding Party in Section 4.5(b) as to the condition of the PREMISES as of February 4, 2011. To the extent a trier of fact determines Plaintiffs’ claims do exist, the responsibility for any liability flowing from that condition is that of Propounding Party pursuant to provisions in the APA including but not limited to 2.11(a) and 4.5(b). .. .. The condition of the factory was consistent with the usual and expected wear and tear for a factory of that age which had been used for like purposes. This includes but is not limited to Plaintiffs’ contention that various components had reached the end of their useful life because if Responding Party is held to have to replace components that reached the end of their useful life, then Propounding Party is liable to Responding Party for the portion of that useful life which elapsed before February 4, 2011.” IOE, Exhibit “D”, Roberts Decl., 9 6. The Interrogatory and sworn statements. (See, e.g., Preach v. Monter Rainbow (1993) 12 Cal.App.4th 1441, 1451; Thompson v. Williams (1989) 211 Cal.App.3d 566.) Accordingly, Graphics’ discovery responses which were conveniently amended after the Motion was filed should be disregarded. There is no allegation in Graphics’ cross- complaint related to the breach of a warranty under Section 4.5(b) and it cannot now provide a basis for avoiding summary judgment. (See, Laabs v. City of Victorville (2008) 163 Cal. App.4th 1242, 1258; Nieto v. Blue Shield of Calif. Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74.) 31 RESPONSE TO OPPOSITION EVIDENTIARY OBJECTIONS A T T O R N E Y S A T L A W oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O particularly the use of the prior answer here is improper because it seeks to force Graphics to choose between protecting its defense against Welsh and its claim against Arlon. C.f., Montrose Chemical Company v. Superior Court (Canadian Universal Insurance Co.) 6 Cal.4th 287, 301- 02 (1993) (Insurer may not try issues of duty to indemnify by means of declaratory relief action while underlying case is ongoing). SDF No. 38 24. Cross- Defendants are only obligated under the APA to “indemnify Cross- Complainants for any ‘claims, liabilities, losses, damages, costs and expenses, including without limitation [] reasonable’ attorneys fees related to Cross- Defendants’ use of the Premises prior to the Closing Date of the APA.” 41. Undisputed. Index Ex. 6 SAXC, qe, 13, 39 [quoting text]; Index Ex. 3 [Asset Purchase Agreement]; p. 60, §10.2(a)(iii). Objection. This is not a fact, it is a quote, and only a partial quote of the APA, which speaks for itself and Defendants misrepresent its terms in an attempt to minimize the scope of their potential liability. Objection. Irrelevant. Because the APA requires indemnification for any loss related to the “operation of the business” before the Closing Date, and the Welsh claim included the failure to replace systems of the factory which had reached the end of their useful life, and because Arlon admits it operated that factory and extracted 22 years of those systems’ useful lives, this “fact” The fact that the APA contains the quoted language establishes that the parties expressly delineated their respective indemnification obligations with respect to the Premises in the APA. Because the APA contains the entire agreement with respect to indemnification for the very damages alleged in this case, equitable indemnity principles are preempted. (E. L. White, Inc. v. City of Huntington Beach (1978) 21 Cal.3d 497, 508.) Sustained: Overruled: 32 RESPONSE TO OPPOSITION EVIDENTIARY OBJECTIONS A T T O R N E Y S A T L A W oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O is irrelevant. SDF No. 41 25. On or about January 18, 2011, Plaintiffs (Landlords) consented to the assignment of the Lease to Cross-Complainants, agreeing that: (1) Cross- Defendants were not in breach of any of their Lease obligations; (2) all of Cross- Defendants’ Lease obligations were satisfied; and (3) Cross- Defendants were not in default in the performance of any of the Lease covenants. Index, Ex. 2 [01/18/11 Letter Agreement]; Index Ex. 7 [J. Welsh Depo. III], p. 119:8-20; Index Ex. 12 [Graphics Response to Cross- Defendants’ RFAs (Set 1)], Response No. 31; Index Ex. 17 [James Welsh’s Amended Response to Cross- Defendants’ RFAs (Set 1)], Response No. 34; Index Ex. 9 [Trombino Depo.], p. 104:8-14. Objection. Irrelevant. Because the APA requires indemnification for any loss related to the “operation of the business” before the Closing Date, and the Welsh claim included the failure to replace systems of the factory which had reached the end of their useful life, and because Arlon admits it operated that factory and extracted 22 years of those systems’ useful lives, this “fact” is irrelevant. It does not matter if there was no breach then because the breach alleged after moveout included failure to replace systems at the end of their useful life and whether or not breach lay January 18, 2011 has nothing to do with whether a significant portion of the systems’ useful lives had been expended before that date. Objection. Irrelevant. This proffered fact has nothing to do with the indemnity relation between Cross- Defendants and Cross- Complainants because it is between Cross- Defendants and Even if equitable indemnity claims were proper, the equitable indemnity claims fail for the same reason that the contract claims fail. The contract claim fails since Plaintiffs are not claiming (and cannot claim) damages in this action for any harm to the Premises which arose prior to the Closing Date. The Landlord’s Consent is relevant to establishing Plaintiffs’ express waiver of claims that predate the Close of Escrow. In addition, the Landlord’s Consent supports the fact that the parties expressly delineated their respective indemnification obligations with respect to the Premises in the APA. Because the APA contains the entire agreement with respect to indemnification for the very damages alleged in this case, equitable indemnity principles are preempted. (E. L. White, Inc. v. City of Huntington Beach (1978) 21 Cal.3d 497, 508.) Sustained: Overruled: 33 RESPONSE TO OPPOSITION EVIDENTIARY OBJECTIONS A T T O R N E Y S A T L A W oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O Plaintiffs. SDF No. 42 26. In the January 18, 2011 letter agreement, Plaintiffs expressly agreed [underscore added; bold in original]: Lessor hereby acknowledges that, notwithstanding anything to the contrary in the Lease or the Guaranty (hereinafter defined), effective as of the Closing Date,...(c) Purchaser [Cross- Complainants] shall be responsible for all obligations arising out of or in connection with the Lease from and after the Closing Date; provided, however, (a) Purchaser shall have no liability for obligations arising prior to the Closing Date, and (b) as between Purchaser and Lessee, nothing in this letter agreement shall expand or diminish the rights and obligations of Purchaser and Lessee under the Agreement. Index, Ex. 2 [01/18/11 Letter Agreement]; Objection. Irrelevant. 1) Because the APA requires indemnification for any loss related to the “operation of the business” before the Closing Date, and the Welsh claim included the failure to replace systems of the factory which had reached the end of their useful life, and because Arlon admits it operated that factory and extracted 22 years of those systems’ useful lives, this “fact” is irrelevant. It does not matter if there was no breach then because the breach alleged after moveout included failure to replace systems at the end of their useful life and whether or not breach lay January 18, 2011 has nothing to do with whether a significant portion of the systems’ useful lives had been expended before that date. 2) this Motion concerns Cross- Defendants’ liability to Graphics, and Plaintiffs have no ability to release Cross- Defendants’ liability to Graphics, making this “fact” non sequiter. SDF No. 43 Even if equitable indemnity claims were proper, the claims fail for the same reason that the contract claims fail. The contract claims fail since Plaintiffs are not claiming (and cannot claim) damages in this action for any harm to the Premises which arose prior to the Closing Date. The Landlord’s Consent is relevant to establishing Plaintiffs’ express waiver of claims that predate the Close of Escrow. In addition, the Landlord’s Consent supports the fact that the parties expressly delineated their respective indemnification obligations with respect to the Premises in the APA. Because the APA contains the entire agreement with respect to indemnification for the very damages alleged in this case, equitable indemnity principles are preempted. Sustained: Overruled: 34 RESPONSE TO OPPOSITION EVIDENTIARY OBJECTIONS A T T O R N E Y S A T L A W oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O Index Ex. 7 [J. Welsh Depo. III], p. 119:8-20; Index Ex. 12 [Graphics Response to Cross- Defendants’ RFAs (Set 1)], Response No. 31; Index Ex. 17 [James Welsh’s Amended Response to Cross- Defendants’ RFAs (Set 1)], Response No. 34; Index Ex. 9 [Trombino Depo.], p. 104:8-14. 27. In this action, Plaintiffs do not contend that any of their alleged damages arose prior to the February 4, 2011 Closing Date. Index Ex. 15 [James Welsh’s Second Amended and Supplemental Response to Cross-Defendants’ Special Interrogatories (Set One)], Response Nos. 1, 15 [“Responding Party has made no such contention in this case.”] and 26; see generally, Index Ex. 16 [James Welsh’s Response to Cross-Defendants’ Special Interrogatories (Set 2)], Response Nos. 77-126; Index Ex. 7 [J. Welsh Depo. III], pp. 122:21- 123:5; Index Ex. 8 [N. Welsh Depo.], p. 11:19-23; Bollard Decl., 20; Index, Ex. 19 [06/28/17 Letter from Plaintiffs’ counsel], pp. 1-2; Bollard Decl., 19; Index, Ex. 18 [05/16/17 Objection. Irrelevant. Because the APA requires indemnification for any loss related to the “operation of the business” before the Closing Date, and the Welsh claim included the failure to replace systems of the factory which had reached the end of their useful life, and because Arlon admits it operated that factory and extracted 22 years of those systems’ useful lives, this “fact” is irrelevant. SDF No. 44 Even if equitable indemnity claims were proper, the claims fail for the same reason that the contract claims fail. The contract claims fail since Plaintiffs are not claiming (and cannot claim) damages in this action for any harm to the Premises which arose prior to the Closing Date. Plaintiffs’ admissions that they are not making any claims related to the period prior to the Closing Date are highly relevant. Plaintiffs acknowledge that they waived all claims that accrued prior to the Closing Date. If Plaintiffs’ claims post- date the Closing Date, Arlon has no obligation to indemnify Graphics in this action and summary judgment is appropriate. Sustained: Overruled: 3 RESPONSE TO OPPOSITION EVIDENTIARY OBJECTIONS A T T O R N E Y S A T L A W oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O Letter from Plaintiffs’ counsel], p. 2. As set forth in the Reply, Graphics’ interpretation of the APA — that Arlon should be forever responsible to indemnify Graphics for the aging or degradation of all building components — would lead to absurd results. 28. There is no evidence that any of the damages at issue in this action arose prior to the February 4, 2011 Closing Date. Index, Ex. 2 [01/18/11 Letter Agreement]; Index Ex. 12 [Arlon Graphics’ Response to Cross- Defendants’ RFAs (Set 1)], Response Nos. 3 [“Responding Party admits that the PREMISES were in ‘good repair’ on February 4, 2011.”], and 14-24; Index Ex. 13 [Arlon Graphics’ Response to Cross- Defendants’ Special Interrogatories (Set One)], Response Nos. 9- 11 [“The PREMISES were in ‘good condition’ and Plaintiffs’ alleged damages do not exist. . . .”’], and 38- 41; Index Ex. 9 [Trombino Depo.], p. 105:3-10; Index Ex. 11[Nicholson Depo.], p. 166: 15-17; Index Ex. 7 [J. Welsh Depo.], pp. 122:21-123:5; Index Ex. 8 [N. Welsh Depo.], p. Objection. Irrelevant. This “fact” is irrelevant. It does not matter if there was no breach then because the breach alleged after move out included failure to replace systems at the end of their useful life and whether or not breach lay January 18, 2011 has nothing to do with whether a significant portion of the systems’ useful lives had been expended before that date. Objection. Misstates the Evidence. The evidence is misstated because the quotation of Arlon Graphics’ Response to Cross- Defendants’ Special Interrogatories (Set One)], Response Nos. 9- 11 elides the language “In the alternative, to the extent a trier of fact finds that those alleged damages do exist, they are the responsibility of Propounding Party in proportion to the time for which Propounding Re: Relevance: Even if equitable indemnity claims were proper, the claims fail for the same reason that the contract claims fail. The contract claims fail since there is no evidence that there was any actionable damage prior to the Closing Date. Plaintiffs’ admissions that they are not making any claims related to the period prior to the Closing Date are highly relevant. Plaintiffs acknowledge that they waived all claims that accrued prior to the Closing Date. If Plaintiffs’ claims post- date the Closing Date, Arlon has no obligation to indemnify Graphics in this action and summary judgment is appropriate. Likewise, Graphics own admissions that the Premises were in good condition and repair on Sustained: Overruled: 36 RESPONSE TO OPPOSITION EVIDENTIARY OBJECTIONS A T T O R N E Y S A T L A W oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O 11:19-23; Index Ex. 15 [James Welsh’s Second Amended and Supplemental Response to Cross- Defendants’ Special Interrogatories (Set One)], Response Nos. 1, 15 and 26; see generally, Index Ex. 16 [James Welsh’s Response to Cross- Defendants’ Special Interrogatories (Set 2)], Response Nos. 77-126; Index Ex. 14 [James Welsh’s Response to Cross-Defendants’ Form Interrogatories (Set One)], No. 17.1; Bollard Decl., 920; Index, Ex. 19 [06/28/17 Letter from Plaintiffs’ counsel], pp. 1-2; Bollard Decl., 19; Index, Ex. 18 [05/16/17 Letter from Plaintiffs’ counsel], p. 2. Party leased and otherwise used the PREMISES and/or the extent to which the alleged damages are found to have accrued during Propounding Party’s leasing and use of the PREMISES.” ROA #177 (Arlon’s Exhibits) at PDF pages 251-53 of 479. The Interrogatory and particularly the use of it here is improper because it seeks to force Graphics to choose between protecting its defense against Welsh and its claim against Arlon. C.f., Montrose Chemical Company v. Superior Court (Canadian Universal Insurance Co.) 6 Cal.4™ 287, 301-02 (1993) (Insurer may not try issues of duty to indemnify by means of declaratory relief action while underlying case is ongoing). Objection. Misstates the Evidence. The evidence is misstated because Graphics’ Responses to Cross-Defendants’ RFAs (Set 1) Nos. 3 and 14-24 were amended and no longer include the quoted language, but rather state, inter alia, that “[r]esponding Party and/or Responding Party’s parent relied on the Warranty of Propounding Party in Section 4.5(b) as to the the Closing Date are highly relevant since, if there were no damages to the Premises prior to the Closing Date, Arlon has no obligation to indemnify Graphics in this action and summary judgment is appropriate. Re: Misstates the Evidence: Graphics’ speculation that a trier of fact may find damages that predate the Closing is insufficient to overcome summary judgment. A party opposing summary judgment must produce substantial responsive evidence to refute the facts established by the moving party. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) Speculation and the hope of favorable future testimony are not sufficient to satisfy that burden. (Doe v. Salesian Soc. (2008) 159 Cal.App.4th 474, 481.) In addition, a party cannot create a triable issue of fact by contradicting prior sworn statements. (See, e.g., Preach v. Monter Rainbow (1993) 12 Cal.App.4th 1441, 1451; Thompson v. Williams (1989) 211 Cal.App.3d 566.) Accordingly, 37 RESPONSE TO OPPOSITION EVIDENTIARY OBJECTIONS A T T O R N E Y S A T L A W oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O condition of the PREMISES as of February 4, 2011. To the extent a trier of fact determines Plaintiffs’ claims do exist, the responsibility for any liability flowing from that condition is that of Propounding Party pursuant to provisions in the APA including but not limited to 2.11(a) and 4.5(b)..... The condition of the factory was consistent with the usual and expected wear and tear for a factory of that age which had been used for like purposes. This includes but is not limited to Plaintiffs’ contention that various components had reached the end of their useful life because if Responding Party is held to have to replace components that reached the end of their useful life, then Propounding Party is liable to Responding Party for the portion of that useful life which elapsed before February 4, 2011.” IOE, Exhibit “D”, Roberts Decl., 9 6. The Interrogatory and particularly the use of the prior answer here is improper because it seeks to force Graphics to choose between protecting its defense against Welsh and its claim against Arlon. C.f., Montrose Chemical Graphics’ discovery responses which were conveniently amended after the Motion was filed should be disregarded. There is no allegation in Graphics’ cross- complaint related to the breach of a warranty under Section 4.5(b) and it cannot now provide a basis for avoiding summary judgment. (See, Laabs v. City of Victorville (2008) 163 Cal. App.4th 1242, 1258; Nieto v. Blue Shield of Calif. Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74.) 38 RESPONSE TO OPPOSITION EVIDENTIARY OBJECTIONS A T T O R N E Y S A T L A W oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O Company v. Superior Court (Canadian Universal Insurance Co.) 6 Cal.4" 287, 301- 02 (1993) (Insurer may not try issues of duty to indemnify by means of declaratory relief action while underlying case is ongoing). SDF No. 45 29. Cross- Defendants are only obligated under the APA to “indemnify Cross- Complainants for any ‘claims, liabilities, losses, damages, costs and expenses, including without limitation [] reasonable’ attorneys fees related to Cross- Defendants’ use of the Premises prior to the Closing Date of the APA.” Index Ex. 6 SAXC, qqe, 13, 39 [quoting text]; Index Ex. 3 [Asset Purchase Agreement]; p. 60, §10.2(a)(iii). Objection. This is not a fact, it is a quote, and only a partial quote of the APA, which speaks for itself and Defendants misrepresent its terms in an attempt to minimize the scope of their potential liability. Objection. Irrelevant. Because the APA requires indemnification for any loss related to the “operation of the business” before the Closing Date, and the Welsh claim included the failure to replace systems of the factory which had reached the end of their useful life, and because Arlon admits it operated that factory and extracted 22 years of those systems’ useful lives, this “fact” is irrelevant. SDF No. 48 It is undisputed that Arlon has no obligation to indemnify Graphics for claims that pertain to the period after the Closing Date. Graphics only dispute is that it argues (without evidence and based on a tortured interpretation of the APA) that the claims at issue “pertain to” the period prior to the Closing Date. As set forth in the Reply, Graphics’ interpretation of the APA — that Arlon should be forever responsible to indemnify Graphics for the aging or degradation of all building components — would lead to absurd results. Sustained: Overruled: 39 RESPONSE TO OPPOSITION EVIDENTIARY OBJECTIONS A T T O R N E Y S A T L A W oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O 30. On or about January 18, 2011, Plaintiffs (Landlords) consented to the assignment of the Lease to Cross-Complainants, agreeing that: (1) Cross- Defendants were not in breach of any of their Lease obligations; (2) all of Cross- Defendants’ Lease obligations were satisfied; and (3) Cross- Defendants were not in default in the performance of any of the Lease covenants. Index, Ex. 2 [01/18/11 Letter Agreement]; Index Ex. 7 [J. Welsh Depo. III], p. 119:8-20; Index Ex. 12 [Graphics Response to Cross- Defendants’ RFAs (Set 1)], Response No. 31; Index Ex. 17 [James Welsh’s Amended Response to Cross- Defendants’ RFAs (Setl)], Response No. 34; Index Ex. 9 [Trombino Depo.], p. 104:8-14. Objection. Irrelevant. Because the APA requires indemnification for any loss related to the “operation of the business” before the Closing Date, and the Welsh claim included the failure to replace systems of the factory which had reached the end of their useful life, and because Arlon admits it operated that factory and extracted 22 years of those systems’ useful lives, this “fact” is irrelevant. It does not matter if there was no breach then because the breach alleged after moveout included failure to replace systems at the end of their useful life and whether or not breach lay January 18, 2011 has nothing to do with whether a significant portion of the systems’ useful lives had been expended before that date. Objection. Irrelevant. This proffered fact has nothing to do with the indemnity relation between Cross- Defendants and Cross- Complainants because it is between Cross- Defendants and Plaintiffs SDF No. 49 The Landlord’s Consent agreement is arguably the most relevant document in this entire case. It absolves Graphics from all liability for any damages that predate the Closing Date. It further acknowledges that, as of the date of the assignment, Arlon was not in breach of any obligation under the Lease or otherwise in default under the Lease. Having waived all claims for any damages arising prior to the Closing Date, the Plaintiffs’ claims in this action necessarily pertain to the period after the Closing Date. Because it is undisputed that Arlon has no obligation to indemnify Graphics for claims that pertain to the period after the Closing Date, summary judgment is appropriate. As set forth in the Reply, Graphics’ interpretation of the APA — that Arlon should be forever responsible to indemnify Graphics for the aging or degradation of all building components — would lead to absurd results. Sustained: Overruled: 40 RESPONSE TO OPPOSITION EVIDENTIARY OBJECTIONS A T T O R N E Y S A T L A W oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O 31. In the January 18, 2011 letter agreement, Plaintiffs expressly agreed [underscore added; bold in original]: Lessor hereby acknowledges that, notwithstanding anything to the contrary in the Lease or the Guaranty (hereinafter defined), effective as of the Closing Date, ... (¢) Purchaser [Cross- Complainants] shall be responsible for all obligations arising out of or in connection with the Lease from and after the Closing Date; provided, however, (a) Purchaser shall have no liability for obligations arising prior to the Closing Date, and (b) as between Purchaser and Lessee, nothing in this letter agreement shall expand or diminish the rights and obligations of Purchaser and Lessee under the Agreement. Index, Ex. 2 [01/18/11 Letter Agreement]; Index Ex. 7 [J. Welsh Depo. III], p. 119:8-20; Index Ex. 12 [Graphics Response to Cross- Defendants’ RFAs (Set Objection. Irrelevant. 1) Because the APA requires indemnification for any loss related to the “operation of the business” before the Closing Date, and the Welsh claim included the failure to replace systems of the factory which had reached the end of their useful life, and because Arlon admits it operated that factory and extracted 22 years of those systems’ useful lives, this “fact” is irrelevant. It does not matter if there was no breach then because the breach alleged after moveout included failure to replace systems at the end of their useful life and whether or not breach lay January 18, 2011 has nothing to do with whether a significant portion of the systems’ useful lives had been expended before that date. 2) this Motion concerns Cross- Defendants’ liability to Graphics, and Plaintiffs have no ability to release Cross- Defendants’ liability to Graphics, making this “fact” non sequiter. SDF No. 50 The Landlord’s Consent agreement is arguably the most relevant document in this entire case. It absolves Graphics from all liability for any damages that predate the Closing Date. It further acknowledges that, as of the date of the assignment, Arlon was not in breach of any obligation under the Lease or otherwise in default under the Lease. Having waived all claims for any damages arising prior to the Closing Date, the Plaintiffs’ claims in this action necessarily pertain to the period after the Closing Date. Because it is undisputed that Arlon has no obligation to indemnify Graphics for claims that pertain to the period after the Closing Date, summary judgment is appropriate. As set forth in the Reply, Graphics’ interpretation of the APA — that Arlon should be forever responsible to indemnify Graphics for the aging or degradation of all building components — would lead to absurd results. Sustained: Overruled: 41 RESPONSE TO OPPOSITION EVIDENTIARY OBJECTIONS A T T O R N E Y S A T L A W oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O 1)], Response No. 31; Index Ex. 17 [James Welsh’s Amended Response to Cross- Defendants’ RFAs (Set 1)], Response No. 34; Index Ex. 9 [Trombino Depo.], p. 104:8-14. 32. In this action, Plaintiffs do not contend that any of their alleged damages arose prior to the February 4, 2011 Closing Date. Index Ex. 15 [James Welsh’s Second Amended and Supplemental Response to Cross-Defendants’ Special Interrogatories (Set One)], Response Nos. 1, 15 [“Responding Party has made no such contention in this case.”] and 26; see generally, Index Ex. 16 [James Welsh’s Response to Cross-Defendants’ Special Interrogatories (Set 2)], Response Nos. 77-126; Index Ex. 7 [J. Welsh Depo. II], pp. 122:21- 123:5; Index Ex. 8 [N. Welsh Depo.], p. 11:19-23; Bollard Decl., 20; Index, Ex. 9 [06/28/17 Letter from Plaintiffs’ counsel], pp. 1-2; Bollard Decl., 19; Index, Ex. 18 [05/16/17 Letter from Plaintiffs’ counsel], p. 2. Objection. Irrelevant. Because the APA requires indemnification for any loss related to the “operation of the business” before the Closing Date, and the Welsh claim included the failure to replace systems of the factory which had reached the end of their useful life, and because Arlon admits it operated that factory and extracted 22 years of those systems’ useful lives, this “fact” is irrelevant. SDF No. 51 Plaintiffs’ admissions that they are not making any claims related to the period prior to the Closing Date are highly relevant. Plaintiffs acknowledge that they waived all claims that accrued prior to the Closing Date. If Plaintiffs’ claims post- date the Closing Date, Arlon has no obligation to indemnify Graphics in this action and summary judgment is appropriate. As set forth in the Reply, Graphics’ interpretation of the APA — that Arlon should be forever responsible to indemnify Graphics for the aging or degradation of all building components — would lead to absurd results. Sustained: Overruled: 42 RESPONSE TO OPPOSITION EVIDENTIARY OBJECTIONS A T T O R N E Y S A T L A W oe 0 N N U t A W N N O N O N O N N O N EE em em em em pm j m pm md pe 32. There is no evidence that any of the damages at issue in this action arose prior to the February 4, 2011 Closing Date. Index, Ex. 2 [01/18/11 Letter Agreement]; Index Ex. 12 [Arlon Arlon Graphics’ Response to Cross- Defendants’ RFAs (Set 1)], Response Nos. 3 [“Responding Party admits that the PREMISES were in ‘good repair’ on February 4, 2011.”], and 14-24; Index Ex. 13 [Arlon Graphics’ Response to Cross- Defendants’ Special Interrogatories (Set One)], Response Nos. 9- 11 [“The PREMISES were in ‘good condition’ and Plaintiffs’ alleged damages do not exist. . . .”’], and 38- 41; Index Ex. 9 [Trombino Depo.], p. 105:3-10; Index Ex. 11 [Nicholson Depo.], p. 166: 15-17; Index Ex. 7 [J. Welsh Depo.], pp. 122:21-123:5; Index Ex. 8 [N. Welsh Depo.], p. 11:19-23; Index Ex. 15 [James Welsh’s Second Amended and Supplemental Response to Cross- Defendants’ Special Interrogatories (Set One)], Response Nos. 1, 15 and 26; see generally, Index Ex. 16 [James Welsh’s Response to Cross- Objection. Irrelevant. This “fact” is irrelevant. It does not matter if there was no breach then because the breach alleged after moveout included failure to replace systems at the end of their useful life and whether or not breach lay January 18, 2011 has nothing to do with whether a significant portion of the systems’ useful lives had been expended before that date. Objection. Misstates the Evidence. The evidence is misstated because the quotation of Arlon Graphics’ Response to Cross- Defendants’ Special Interrogatories (Set One)], Response Nos. 9- 11 elides the language “In the alternative, to the extent a trier of fact finds that those alleged damages do exist, they are the responsibility of Propounding Party in proportion to the time for which Propounding Party leased and otherwise used the PREMISES and/or the extent to which the alleged damages are found to have accrued during Propounding Party’s leasing and use of the PREMISES.” ROA #177 (Arlon’s Exhibits) at PDF pages 251-53 of 479. The Re: Relevance: The contract claims (including contractual indemnity) fail since there is no evidence that there was any actionable damage prior to the Closing Date. Plaintiffs’ admissions that they are not making any claims related to the period prior to the Closing Date are highly relevant. Plaintiffs acknowledge that they waived all claims that accrued prior to the Closing Date. If Plaintiffs’ claims post- date the Closing Date, Arlon has no obligation to indemnify Graphics in this action and summary judgment is appropriate. Likewise, Graphics own admissions that the Premises were in good condition and repair on the Closing Date are highly relevant since, if there were no damages to the Premises prior to the Closing Date, Arlon has no obligation to indemnify Graphics in this action and summary judgment is appropriate. Re: Misstates the Evidence: Graphics’ speculation that a trier of fact may find damages that predate the Closing is 43 RESPONSE TO OPPOSITION EVIDENTIARY OBJECTIONS A T T O R N E Y S A T L A W oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O Defendants’ Special Interrogatories (Set 2)], Response Nos. 77-126; Index Ex. 14 [James Welsh’s Response to Cross-Defendants’ Form Interrogatories (Set One)], No. 17.1; Bollard Decl., 920; Index, Ex. 19 [06/28/17 Letter from Plaintiffs’ counsel], pp. 1-2; Bollard Decl., 19; Index, Ex. 18 [05/16/17 Letter from Plaintiffs’ counsel], p. 2 Interrogatory and particularly the use of it here is improper because it seeks to force Graphics to choose between protecting its defense against Welsh and its claim against Arlon. C.f., Montrose Chemical Company v. Superior Court (Canadian Universal Insurance Co.) 6 Cal.4th 287, 301-02 (1993) (Insurer may not try issues of duty to indemnify by means of declaratory relief action while underlying case is ongoing). Objection. Misstates the Evidence. The evidence is misstated because Graphics’ Responses to Cross- Defendants’ RFAs (Set 1) Nos. 3 and 14-24 were amended and no longer include the quoted language, but rather state, inter alia, that “[r]esponding Party and/or Responding Party’s parent relied on the Warranty of Propounding Party in Section 4.5(b) as to the condition of the PREMISES as of February 4, 2011. To the extent a trier of fact determines Plaintiffs’ claims do exist, the responsibility for any liability flowing from that condition is that of Propounding Party insufficient to overcome summary judgment. A party opposing summary judgment must produce substantial responsive evidence to refute the facts established by the moving party. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) Speculation and the hope of favorable future testimony are not sufficient to satisfy that burden. (Doe v. Salesian Soc. (2008) 159 Cal.App.4th 474, 481.) In addition, a party cannot create a triable issue of fact by contradicting prior sworn statements. (See, e.g., Preach v. Monter Rainbow (1993) 12 Cal.App.4th 1441, 1451; Thompson v. Williams (1989) 211 Cal.App.3d 566.) Accordingly, Graphics’ discovery responses which were conveniently amended after the Motion was filed should be disregarded. There is no allegation in Graphics’ cross- complaint related to the breach of a warranty under Section 4.5(b) and it cannot now provide a basis for avoiding summary judgment. (See, Laabs v. City of 44 RESPONSE TO OPPOSITION EVIDENTIARY OBJECTIONS A T T O R N E Y S A T L A W oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O pursuant to provisions in the APA including but not limited to 2.11(a) and 4.5(b). . . .. The condition of the factory was consistent with the usual and expected wear and tear for a factory of that age which had been used for like purposes. This includes but is not limited to Plaintiffs’ contention that various components had reached the end of their useful life because if Responding Party is held to have to replace components that reached the end of their useful life, then Propounding Party is liable to Responding Party for the portion of that useful life which elapsed before February 4, 2011.” IOE, Exhibit “D”, Roberts Decl., 9 6. The Interrogatory and particularly the use of the prior answer here is improper because it seeks to force Graphics to choose between protecting its defense against Welsh and its claim against Arlon. C.f., Montrose Chemical Company v. Superior Court (Canadian Universal Insurance Co.) 6 Cal.4th 287, 301- 02 (1993) (Insurer may not try issues of duty to indemnify by means of declaratory relief action while underlying case is ongoing). Victorville (2008) 163 Cal.App.4th 1242, 1258; Nieto v. Blue Shield of Calif. Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74.) 45 RESPONSE TO OPPOSITION EVIDENTIARY OBJECTIONS A T T O R N E Y S A T L A W oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O SDF No. 52 DATED: December 6, 2017 JULANDER, BROWN & BOLLARD By: William C. Bollard" Attorneys for ARLON, LLC and HANDY & HARMAN, LTD 46 RESPONSE TO OPPOSITION EVIDENTIARY OBJECTIONS
