On January 22, 2019 a
Conference
was filed
involving a dispute between
Chulick, Carol,
Hagen, Deborah,
Hagler, Joleen,
and
Anheuser-Busch, Llc,
Anheuserbusch, Llc,
Associated Insulation Of California,
Buttner Corp.,
Columbia Mechanical Contractors, Inc.,
Cooper Brothers, Inc.,
Cosco Fire Protection, Inc.,
Does 1 Through 800, Inclusive, As Required By,
D. Zelinksy & Sons, Inc.,
D. Zelinsky & Sons, Incorporated,
Fdcc California, Inc.,
Frank Bonetti Plumbing, Inc.,
George H. Wilson, Inc.,
George Wilson Company, Inc.,
Grinnell Llc,
Grinnell Llc (Fka Grinnell Corporation, Aka,
Johnson Controls, Inc.,
Kelly-Moore Paint Company, Inc.,
Kellymoore Paint Company, Inc.,
Marconi Plastering Company, Inc.,
Metropolitan Life Insurance Company,
Monterey Mechanical Co.,
Riley Power Inc.,
Rosendin Electric, Inc.,
Rudolph And Sletten, Inc.,
Scott Co. Of California,
Texaco Inc.,
W.L. Hickey Sons, Inc.,
Chulick, Carol,
Hagen, Deborah,
Hagler, Joleen,
for ASBESTOS
in the District Court of San Francisco County.
Preview
1 DAVID R. DONADIO, ESQ., S.B. #154436
JANINE M. FIEL-COSSE, ESQ., S.B. #279377
2 jfiel-cosse@braytonlaw.com
BRAYTONPURCELL LLP ELECTRONICALLY
3 Attorneys at Law
222 Rush Landing Road
F I L E D
Superior Court of California,
4 Post Office Box 6169 County of San Francisco
Novato, California 94948-6169 10/25/2019
5 (415) 898-1555 Clerk of the Court
BY: ERNALYN BURA
6 Attorneys for Plaintiffs Deputy Clerk
7
8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO
10
11 CAROL CHULICK, as Successor-in- ) ASBESTOS
Interest to and as Wrongful Death Heir of ) No. CGC-19-276757
12 JOHN CHULICK, Deceased; and )
NOVATO, CALIFORNIA 94948-6169
DEBORAH HAGEN and JOLEEN ) MEMORANDUM OF POINTS
BRAYTONPURCELL LLP
222 RUSH LANDING ROAD
13 HAGLER, as Wrongful Death Heirs of ) AND AUTHORITIES IN SUPPORT OF
ATTORNEYS AT LAW
JOHN CHULICK, Deceased, ) EX PARTE APPLICATION FOR ORDER
(415) 898-1555
P O BOX 6169
14 ) VACATING DECEMBER 2, 2019
Plaintiffs, ) PREFERENCE TRIAL DATE AND
15 ) ADDING CASE TO DECEMBER 19, 2019,
vs. ) STATUS AND SETTING CONFERENCE
16 )
RILEY POWER INC., et al., )
17 ) Date: October 29, 2019
Defendants. ) Time: 11:00 a.m.
18 Dept: 503, Hon. Cynthia Ming-mei Lee
Trial Date: December 2, 2019
19 Action Filed: January 22, 2019
20 RELEVANT PROCEDURAL HISTORY
21 On January 22, 2019, plaintiffs filed this personal injury complaint. On August 14, 2019,
22 pursuant to plaintiffs’ Motion for Preference, plaintiff CAROL CHULICK was assigned a
23 December 2, 2019, trial date. Through plaintiffs’ continuing investigation and discovery it was
24 discovered that plaintiffs’ essential witness Robert Cantley, is unable to be deposed before the
25 December 2, 2019, trial date due to his health. Mr. Cantley is as to most defendants the only lay
26 witness. Requiring plaintiffs to proceed without his testimony would essentially render plaintiffs
27 without a case against the majority of the defendants. On October 17, 2019, plaintiffs appeared
28 at a Case Management Conference and informed the court that plaintiffs planned to proceed with
K:\Injured\26244\PLD\p&a vacate add.wpd 1 JFC
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR ORDER VACATING
DECEMBER 2, 2019 PREFERENCE TRIAL DATE AND ADDING CASE TO DECEMBER 19, 2019, STATUS AND SETTING
CONFERENCE
1 vacating the preference trial date to allow for Mr. Cantley to be deposed. The court requested an
2 ex parte motion be filed to vacate the preference trial date and add the case to the December 19,
3 2019. status conference. By this application, plaintiffs request the December 2, 2019, preference
4 trial date be vacated to allow time to set Mr. Cantley for deposition.
5 Plaintiffs further request that the case be added to the December 19, 2019, Status and
6 Setting Conference so the case remains on the court’s active calendar.
7 MEMORANDUM OF POINTS AND AUTHORITIES
8 C.R.C. Rule 3.1335 states that a motion to reset a trial can be made either by noticed
9 motion or ex parte application. Under this rule the motion may be granted “only upon
10 affirmative showing by the moving party of good cause based on a declaration served and filed
11 with the motion or application.”
12 Nothing in the California Code of Civil Procedure, California Rules of Court, or the local
13 rules of this Court prevents this Court from vacating the trial date herein so an essential witness
14 can be deposed. Furthermore, C.C.P. § 128 vests this Court with the discretion to grant
15 plaintiffs’ requested relief pursuant to the Court’s authority to control the proceedings before it.
16 California Code of Civil Procedure § 128 provides:
17 (a) Every court shall have the power to do all of the following:
18 (3) To provide for the orderly conduct of proceedings before it,
or its officers.
19
20 Permitting time to depose Mr. Cantley, who is an essential witness is good cause for a
21 continuance under C.R.C. Rule 3.1332(c)(1) which states “the availability of an essential lay or
22 expert witness because of death, illness or other excusable circumstances is grounds for a
23 continuance.” There will be little or no prejudice to the current defendants in vacating the trial
24 date and adding the case to a future status conference. On the other hand prejudice will result if
25 plaintiffs are not allowed the requested relief. Mr. Cantley is as to most defendants the only lay
26 witness. Requiring plaintiffs to proceed without his testimony would essentially render plaintiffs
27 without a case against the majority of the defendants.
28 ///
K:\Injured\26244\PLD\p&a vacate add.wpd 2 JFC
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR ORDER VACATING
DECEMBER 2, 2019 PREFERENCE TRIAL DATE AND ADDING CASE TO DECEMBER 19, 2019, STATUS AND SETTING
CONFERENCE
1 In light of the unavailability of plaintiffs’ witness Mr. Cantley, the lack of legal authority
2 against plaintiffs’ request, and the public policy considerations favoring plaintiffs’ request,
3 plaintiffs respectfully request this Court, pursuant to C.C.P. § 128, vacate the December 2, 2019,
4 preference trial date so that Mr Cantley can be deposed. Plaintiffs ask that the case be added to
5 the December 19, 2019, Status and Setting Conference to allow the case to remain on the court’s
6 calendar. Further, it should be noted that plaintiffs intend to move for preference again once
7 Mr. Cantley’s deposition is set.
8 And finally, plaintiffs request that discovery remain open and the new trial date when
9 assigned be considered the “initial” trial date for discovery purposes as to all defendants.
10
11 Dated: October 25, 2019 BRAYTONPURCELL LLP
12
13 By: /s/ Janine M. Fiel-Cosse
Janine M. Fiel-Cosse
14 Attorneys for Plaintiffs
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K:\Injured\26244\PLD\p&a vacate add.wpd 3 JFC
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR ORDER VACATING
DECEMBER 2, 2019 PREFERENCE TRIAL DATE AND ADDING CASE TO DECEMBER 19, 2019, STATUS AND SETTING
CONFERENCE
Preview
1 DAVID R. DONADIO, ESQ., S.B. #154436 JANINE M. FIEL-COSSE, ESQ., S.B. #279377 2 jfiel-cosse@braytonlaw.com BRAYTONPURCELL LLP ELECTRONICALLY 3 Attorneys at Law 222 Rush Landing Road F I L E D Superior Court of California, 4 Post Office Box 6169 County of San Francisco Novato, California 94948-6169 10/25/2019 5 (415) 898-1555 Clerk of the Court BY: ERNALYN BURA 6 Attorneys for Plaintiffs Deputy Clerk 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SAN FRANCISCO 10 11 CAROL CHULICK, as Successor-in- ) ASBESTOS Interest to and as Wrongful Death Heir of ) No. CGC-19-276757 12 JOHN CHULICK, Deceased; and ) NOVATO, CALIFORNIA 94948-6169 DEBORAH HAGEN and JOLEEN ) MEMORANDUM OF POINTS BRAYTONPURCELL LLP 222 RUSH LANDING ROAD 13 HAGLER, as Wrongful Death Heirs of ) AND AUTHORITIES IN SUPPORT OF ATTORNEYS AT LAW JOHN CHULICK, Deceased, ) EX PARTE APPLICATION FOR ORDER (415) 898-1555 P O BOX 6169 14 ) VACATING DECEMBER 2, 2019 Plaintiffs, ) PREFERENCE TRIAL DATE AND 15 ) ADDING CASE TO DECEMBER 19, 2019, vs. ) STATUS AND SETTING CONFERENCE 16 ) RILEY POWER INC., et al., ) 17 ) Date: October 29, 2019 Defendants. ) Time: 11:00 a.m. 18 Dept: 503, Hon. Cynthia Ming-mei Lee Trial Date: December 2, 2019 19 Action Filed: January 22, 2019 20 RELEVANT PROCEDURAL HISTORY 21 On January 22, 2019, plaintiffs filed this personal injury complaint. On August 14, 2019, 22 pursuant to plaintiffs’ Motion for Preference, plaintiff CAROL CHULICK was assigned a 23 December 2, 2019, trial date. Through plaintiffs’ continuing investigation and discovery it was 24 discovered that plaintiffs’ essential witness Robert Cantley, is unable to be deposed before the 25 December 2, 2019, trial date due to his health. Mr. Cantley is as to most defendants the only lay 26 witness. Requiring plaintiffs to proceed without his testimony would essentially render plaintiffs 27 without a case against the majority of the defendants. On October 17, 2019, plaintiffs appeared 28 at a Case Management Conference and informed the court that plaintiffs planned to proceed with K:\Injured\26244\PLD\p&a vacate add.wpd 1 JFC MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR ORDER VACATING DECEMBER 2, 2019 PREFERENCE TRIAL DATE AND ADDING CASE TO DECEMBER 19, 2019, STATUS AND SETTING CONFERENCE 1 vacating the preference trial date to allow for Mr. Cantley to be deposed. The court requested an 2 ex parte motion be filed to vacate the preference trial date and add the case to the December 19, 3 2019. status conference. By this application, plaintiffs request the December 2, 2019, preference 4 trial date be vacated to allow time to set Mr. Cantley for deposition. 5 Plaintiffs further request that the case be added to the December 19, 2019, Status and 6 Setting Conference so the case remains on the court’s active calendar. 7 MEMORANDUM OF POINTS AND AUTHORITIES 8 C.R.C. Rule 3.1335 states that a motion to reset a trial can be made either by noticed 9 motion or ex parte application. Under this rule the motion may be granted “only upon 10 affirmative showing by the moving party of good cause based on a declaration served and filed 11 with the motion or application.” 12 Nothing in the California Code of Civil Procedure, California Rules of Court, or the local 13 rules of this Court prevents this Court from vacating the trial date herein so an essential witness 14 can be deposed. Furthermore, C.C.P. § 128 vests this Court with the discretion to grant 15 plaintiffs’ requested relief pursuant to the Court’s authority to control the proceedings before it. 16 California Code of Civil Procedure § 128 provides: 17 (a) Every court shall have the power to do all of the following: 18 (3) To provide for the orderly conduct of proceedings before it, or its officers. 19 20 Permitting time to depose Mr. Cantley, who is an essential witness is good cause for a 21 continuance under C.R.C. Rule 3.1332(c)(1) which states “the availability of an essential lay or 22 expert witness because of death, illness or other excusable circumstances is grounds for a 23 continuance.” There will be little or no prejudice to the current defendants in vacating the trial 24 date and adding the case to a future status conference. On the other hand prejudice will result if 25 plaintiffs are not allowed the requested relief. Mr. Cantley is as to most defendants the only lay 26 witness. Requiring plaintiffs to proceed without his testimony would essentially render plaintiffs 27 without a case against the majority of the defendants. 28 /// K:\Injured\26244\PLD\p&a vacate add.wpd 2 JFC MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR ORDER VACATING DECEMBER 2, 2019 PREFERENCE TRIAL DATE AND ADDING CASE TO DECEMBER 19, 2019, STATUS AND SETTING CONFERENCE 1 In light of the unavailability of plaintiffs’ witness Mr. Cantley, the lack of legal authority 2 against plaintiffs’ request, and the public policy considerations favoring plaintiffs’ request, 3 plaintiffs respectfully request this Court, pursuant to C.C.P. § 128, vacate the December 2, 2019, 4 preference trial date so that Mr Cantley can be deposed. Plaintiffs ask that the case be added to 5 the December 19, 2019, Status and Setting Conference to allow the case to remain on the court’s 6 calendar. Further, it should be noted that plaintiffs intend to move for preference again once 7 Mr. Cantley’s deposition is set. 8 And finally, plaintiffs request that discovery remain open and the new trial date when 9 assigned be considered the “initial” trial date for discovery purposes as to all defendants. 10 11 Dated: October 25, 2019 BRAYTONPURCELL LLP 12 13 By: /s/ Janine M. Fiel-Cosse Janine M. Fiel-Cosse 14 Attorneys for Plaintiffs 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K:\Injured\26244\PLD\p&a vacate add.wpd 3 JFC MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR ORDER VACATING DECEMBER 2, 2019 PREFERENCE TRIAL DATE AND ADDING CASE TO DECEMBER 19, 2019, STATUS AND SETTING CONFERENCE