Stipulation,Agreement: CAROL CHULICK ET AL VS. RILEY POWER INC.

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                                1 IAN P. DILLON, State Bar No. 203612
                   idillon@wfbm.com
                 2 KURT T. PUTNAM,State Bar No. 224416                                                            ELECTRONICALLY
                   kputnam@wfbm.com
                 3 WFBM,LLP                                                                                          FILED
                                                                                                                 Superior Court of California,
                   601 Montgomery Street, Ninth Floor                                                             County of San Francisco
                 4 San Francisco, California 94111-2612
                   Telephone: (415)781-7072                                                                           07/31/2019
                                                                                                                  Clerk of the Court
                 5 Facsimile:   (415)391-6258                                                                       BY: BOWMAN LIU
                                                                                                                             Deputy Clerk
                 6 Attorneys for Specially Appearing Defendant
                   GEORGE H. WILSON,INC.
                 7

                 8                            SUPERIOR COURT OF THE STATE OF CALIFORNIA

                 9                                            COUNTY OF SAN FRANCISCO

                10

                11 CAROL CHULICK as successor-in-interest to                           Case No. CGC-19-276757
   ~ N ~p          and Wrongful Death Heir of JOHN
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     N ~        12 CHULICK, Deceased; and DEBORAH                                      Assignedfor All Pretrial Purposes to
   =        m      HAGEN and JOLEEN HAGLER as Wrongful                                 Hon. Cynthia Ming-mei Lee in Dept. 503
= Z~~           13 Death Heirs of JOHN CHULICK,Deceased, ,
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                                                                                       MEMORANDUM OF POINTS AND
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                                                                                       DEFENDANT GEORGE H. WILSON,
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   ~   ~~              ~ RILEY POWER,et al.,,                                          PURSUANT TO STIPULATION; IN THE
   _   Z~                                                                              ALTERNATIVE,APPLICATION FOR
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                                          Defendants.                                  ORDER SHORTENING TIME

                18                                                                     Judge:                Hon. Cynthia Ming-mei Lee
                                                                                       Dept.:                503
                19                                                                     Date:                 August 1, 2019
                                                                                       Time:                 11:00 a.m.
                20
                                                                                       Action Filed:         January 22, 2019
                21                                                                     Trial Date:           None Set

                22

                23              Specially Appearing Defendant GEORGE H. WILSON, INC.("GEORGE H. WILSON")

                24 submits the following Memorandum of Points and Authorities in support ofits ex parte Application

                25 for an Order to set aside the default taken against it by Plaintiffs CAROL CHULICK, DEBORAH

                26 HAGEN,and JOLEEN HAGLER("Plaintiffs")in the above-referenced case, pursuant to a stipulation

                27 between the parties. In the alternative, GEORGE H. WILSON will request an order shortening time to

                28 hear a motion re same.
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                              MEMORANDUM OF POINTS AND At1THORI"CIEs IN SUPPORT OF DEFENDANT GF.URGF.. } I. WILSON, INC.'S EX PAIZ"l'L
4924653.1
                        APPLICA`fION I~OR AN ORUI:R "I'O SI "I' nSIDF-. DF.~AULT PiJRSUnNT TO STIPULnTION; IN "I'I1L' AL'fI:RNATIVE, APPLICA"TION FOR
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                    I.        INTRODUCTION

                              This case was filed on January 22, 2019, and the Complaint was amended on February 15,

                    ~ 2019,to name GEORGE H. WILSON as a"Doe" defendant. Unfortunately, a Default was entered as

                    ~ to GEORGE;I I. WILSON,as its counsel was not informed ofthe pendency ofthis litigation. As soon

                    as it was apprised of this case, counsel entered into a stipulation with Plaintiffs' counsel to set aside

                    the Default. No prejudice will inut•e to Plaintiffs, the Court, or any other party, because GEORGE H.

                    WILSON has agreed to forego opposing Plaintiffs' pending motion for preference; none ofPlaintiffs'

                    depositions have yet gone forward; and because GEORGE H. WILSON will be able to participate
                c~ fully in discovery. Moreover, UEORUE ~-I. WILSON will file and serve its Answer within 5 days of~

               .I [I] the execution of the Order on this ex pane flpplication. Failure to set aside the Default will deprive

                    GEORGE H. WILSON of its important rights under the tJ.S. and California Constitutions.
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               l2             Thus, good cause exists to grant GEORUE II. WILSON's ex pate Application, and set aside
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   ~~~'        13 the Default in this case. In the alternative, GEORGE H. WILSON requests that the Court allow a
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          ``   14 motion to be heard in this issue on shot•tened time.

J WO ~         IS II.         STATEMENT OT I~'ACTS
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      ~        16             Plaintiffs filed their Complaint for Survival, Wrongful Death —Asbestos ("Complaint") on
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               17 January 22, 2019.(Declaration of Kurt `I~. Putnam ("Putnam Decl."), filed concurrently herewith, at

               18 ~~ 4.) On I~ebruary 15,2019,Plaintiffs filed a"Doe".Amendment to the Complaint, naming GEORGE

               19 ~ II. WILSON as "DOE DEFENDAN~I, 301." (Id.) rI'he Summons and Complaint was served on

               20 ~ C'JEORGE II. WILSON on March 7,2019.(Icy) On May 2K,2U 19,counsel for Plaintiffs from ~3rayton

               21 ~ Purcell informed the agent of service of process for UEORGE H. WILSON that its answer was

               22 overdue. (Icy) On July 10, 2019, Plaintiffs filed their Request for Default against GEORGE H.

               23 WILSON.(Icy) T'he Court entered Default on the same day.(Icy ;Default,Putnam Reel. as ExhihitA.)

               24             As soon as counsel for GEORGE H. WILSON was apprised of the case and the entry of

               25 default, it contacted ~3rayton Purcell and requested that Plaintiffs enter into a stipulation to set aside

               26 i~ the Default taken against GEORCJE H. WILSON.(Putnam Decl. at ¶ 6.) Plaintiffs agreed, and

               27 stipulated to setting aside the Default in this case. (Id.)

               28 ///
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                          MI~MOIZnNDUM Of' POIN"I~S nND l~U'['I-IOItI'I'II S IN SUPPORT Ol~ DL;PF;NllnN'1' GEORGE ►-I. WILSON, INC.'S EX f'AIZI1:
4924653.1
                     nPPL[CA'fION I~oIz nN O[ZDER TO SL-"I' ASIDE DFFAUI."I' PURSUnN"I"TO S"1'IPULl1"PION; [N "I'I-iL' AL'I'L'RNn"1'IVE, APPI,[CA"PION FOR
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                            Good cause exists for granting this relief, because Plaintiff's counsel has stipulated to setting

                2 ~ ~ aside the Default and GEORGE H. WILSON has agreed to forego opposing Plaintiffs' pending

                3 ~ motion for preference; Plaintiffs' depositions have not yet gone forward; and because there is ample

                4 time to conduct discovery.(Putnam Decl. at ¶ 7.) If this ex pane is granted, GEORGE H. WILSON

                5 ~ will file and serve its Answer within 5 days of the execution of the Order.(Id.)

                6 III.      LEGAL ARGUMENT

                7           A.        THIS COURT HAS THE AUTHORITY TO SET ASIDE THE DEFAULT
                                      TAKEN AGAINST GEORGE H. WILSON PURSUANT TO THE PARTIES'
                8                     STIPULATION,AND ON AN EXPARTS BASIS

                9           California Rules of Court, Rule 3.1202(c) provides the Court with authority to grant relief on

               10 ~ an ex pane basis upon an affirmative factual showing ofirreparable harm or any other statutory basis

               1 1 ~ for granting relief.(Thurmond v. Super. Ct. (1967)66 Ca1.2d 836, 838-40.) Additionally, Code of
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          N    12 ~ Civil Procedure section 128(a) provides that "[e]very court shall have the power to do all of the
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      Q'~      13 ~ following:...(3)'1'o provide for the orderly conduct of proceedings before it, or its officers. ...
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      J `~     14 (4)To compel obedience to its judgments, orders, and process, and to the orders of a judge out of
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       r       15 c;~urt, iti arl action or proceedings therein....(8)To amend and control its process and orders so as to
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      ~a ~     16 make them conform to law and justice."
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               17           In interpreting this statute, the Court of Appeal has stated that:

               18                    [c]ourts have inherent equity, supervisory and administrative power.
                                     [They] have fashioned new forms of procedures when required to
               19                    deal with the rights ofthe parties and to manage the case load ofthe
                                     court. Moreover, every court has the inherent power to regulate the
               20                    proceedings of matters before it and effect an orderly disposition of
                                     the issues presented.(Cottle v..Super. Ct.(1992)3 Cal.App.4th 1367,
               21                     1378.)

               ~~           Plaintiffs have stipulated to setting aside the default taken against GEORGE H. WILSON,.

               23 ~ There is no pending trial date in this case, although Plaintiffs have filed a motion for preference.

               24 ~ However, GEORGE H. WILSON has agreed to not oppose Plaintiffs' preference motion. Plaintiffs'

               25 ~ depositions have not yet gone forward. There will be ample time to conduct discovery once GEORGE

               26 ~ H. WILSON has filed its Answer, within 5 days of the execution of the Order.

               27           Thus, no prejudice will inure to Plaintiffs or the Court, or any other party by setting aside the

               28 ', ~ Default against GEORGE H. WILSON.
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                          MEMORnNDiJM OF I'OIN"I'S ~1ND AU'1'I-IORI"PIES IN SUPPORT OF DLFLNDAN'I'GEORGE [-I. WILSON, INC.'S f:'X P~1R7I'
4924653.I
                    APPI,ICA'I'ION POR AN ORDER'I'O SL"I' nSIDF DEFAULT'Pi1RSUANT "I'O STIPUI./~'I'ION; IN 'TI-IF., ALTF.,RNA'I'IVE, APPL[CA"PION POR
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                   1            On the other hand, GEORGE H. WILSON will be irreparably harmed if it is not allowed to

                   2 answer Plaintiffs' allegations and prepare and defend itself at trial in this case through the discovery

                   3 process.(See e.g. U.S. Const. Amend XIV,§ 1; Cal. Const. Article I, § 7.)

                   4            Thus, good cause exists for ordering that the default against GEORGE H. WILSON be set

                   5 aside pursuant to the stipulation agreed to by the parties. Neither Plaintiffs, other parties,or the Court,

                   6 will be prejudiced by granting this relief. However,as discussed below, GEORGE H. WILSON will

                   7 be denied a fair trial should the default not be set aside.

                   8
                                B.        GEORGE H. WILSON WILL BE DEPRIVED OF ITS CONSTITUTIONAL
                   9                      RIGHT TO A FAIR TRIAL IF RELIEF IS NOT GRANTED

                  10            The Due Process Clauses of both the U.S. and California Constitutions provide that no person

                  11   shall be deprived of life, liberty or property "without due process oflaw."(U.S. Const. Amend XIV,
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                  12    1; Cal. Const. Article I, §7.)the U.S. Supreme Court has recognized that Due Process entitles a party
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~ ~~`~            13 to an "adequate opportunity to defend against the imposition ofliability."(Nelson v. Adams USA,Inc.
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    J             14 (?000)529 U.S. 460,466.) California courts have held that Due Process also requires that a party be
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joc~~n~           15 given a reasonable opportunity for discovery and pre-trial preparation.(See Feter~s v. Super•. Ct.(1989)
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        ¢~        16 212 Cal. App. 3d 218, 227.)
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     ~ `~~        17           "Without an opportunity for discovery as of right, parties would face substantial barriers to

                  18 effective trial preparation, with results inimical to the overall purpose of the discovery statutes to

                  19 reduce litigation costs, expedite trials, avoid surprise,and encourage settlement."(Fairmont Ins. Cv. v.

                  20 Super. Ct. (2000)22 Cal.4th 245, 253.)

                  21            Every litigant, including GEORCJE H. WILSON,has the right to a reasonable opportunity for

                  22 discovery as to the facts and evidence alleged against it at trial. Unless the Default is set aside,

                  23 GEORGE H. WILSON will be irreparably harmed, because it will result in an unfair trial.

                  24 IV.        CONCLUSION

                  25            As discussed above, the parties have stipulated that the default taken against GEORGE H.

                  26 WILSON should be set aside. Irreparable damage will inure to GEORGE II. WILSON should this

                  27 relief not be granted.

                  28 ///

                               MEMOIZANUUM OF I'OIN"fS AND AUTf-iORITIF;S IN SIIPPOR7'OF DEFENDANT GEOIZGF: I-I. WILSON, INC.'S GX P~1RTL'
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                       ~1PPI,IC~1"I'IUN FOR AN ORDER TO SE"I' ASIllE DI;I~AUI,T PURSUAN"t `I'O S'I'IPUI,A"PION; IN "I'I-[L AL"I'ERNA"I'IVE;, APPLICA"PION FOR
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               1           In the alternative, GEORGE H. WILSON requests that the Court issue an Order Shortening

              2 Time to hear a motion re same.

               3

              4 Dated: July 31, 2019                            WFBM,LLP

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                                                                By:
               7                                                       IAN P. DILLON
                                                                       KURT T. PUTNAM
               8                                                       Attorneys for Specially Appearing Defendant
                                                                       GEORGE H. WILSON,INC.
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                         MEMORANDUM OF POINTS AND AiJTI-iORITICS IN SUPPOR'C OF DEFENDAN"I'GEORGE H. WILSON, INC.'S EX PAR7G
4924653.1
                    APPLICATION FOR AN ORDER 1'O SL:"1' ASIDE: DEFAULT PiJRSi1ANT TO STIPULATION; IN THr /1I,TF,RNATIVF,, APPLICATION FOR
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                                                                   PROOF OF SERVICE

              2                            CAROL CHULICK,et al. v. RILEY POWER,et al.
                                       SAN FRANCISCO SUPERIOR COURT NO.: CGC-19-276757
               3                             OUR CLIENT: GEORGE H. WILSON,INC.

              4       At the time of service, I was over 18 years of age and not a party to this action. I am
                employed in the County of San Francisco, State of California. My business address is 601
              5 Montgomery Street, Ninth Floor, San Francisco, CA 94111-2612.

              6             On July 31, 2019, I served true copies of the following documents) described as

              7             MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
                            DEFENDANT GEORGE H. WILSON,INC.'S EX PARTS APPLICATION FOR AN
              8             ORDER TO SET ASIDE DEFAULT PURSUANT TO STIPULATION;IN THE
                            ALTERNATIVE,APPLICATION FOR ORDER SHORTENING TIME
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                            on the interested parties in this action as follows:
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                             BRAYTON PURCELL LLP                                              All Parties via File & ServeXpress
              11              222 Rush Landing Road
                                   P.O. Box 6169
              12            Novato, California 94948-6169
        m                      Attorney for Plaintiffs
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:       r-               BY ELECTRONIC SERVICE: I electronically served the documents) described above
        `~    16 via File & ServeXpress, on the recipients designated on the 'Transaction Keceipt located on the
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                 File & ServeXpress website (https://secure.fileandservexpress.com) pursuant to the Court Order
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              17 e~tahli~hin~ the cage wehsite and authorizing service of documents.

              18          I declare under penalty of perjury under the laws of the State of California that the
                   foregoing is true and correct.
              19
                            Executed on July 31, 2019, at San Francisco, California.
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                         ME;MORANDt1M OF POIN"('S ANI~ AU'I'HUfZI'1'11~;5 1N SUf'1'OK'1' U1' 1~L1~LNl)AN'1'(Jk:Utt(it: k-i. WILSUN, WC.'S f:'X /'~Ik`1'1:
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                   APPLICA"PION I~OR AN ORDI;R'I'O SE"f ASIDE DEI~AUI:T PUIZSUAN"I'"I'O STIPUi.A"PION; IN 'I'I~{L AL`I~ERNAT'IVL, APPL.ICA"PION I~OR
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