Preview
SoD Om ND BR HY
FRANK D. POND (Bar No. 126191)
ANN L. PARK (Bar No. 130394) ELECTRONICALLY
apark@pondnorth.com
KATHLEEN B. EBRAHIMI (Bar No. 214593) FILED
kebrahimi@pondnorth.com ‘ Superior Court of California,
POND NORTH LEP County of San Francisco
350 South Grand Avenue, Suite 3300
Los Angeles, CA 90071 FEB 03 2014
Telephone; (213) 617-6170 BY: JUDITH NUNEZ
Facsimile: (213) 623-3594 Deputy Clerk
Attorneys for Defendant
BELL INDUSTRIES, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO
HAROLD KOEPKE and Case No: CGC-13-276217
NANCY KARDIS-KOEPKE,
DEFENDANT BELL INDUSTRIES, INC.’S
Plaintiffs, OPPOSITION TO PLAINTIFFS’ MOTION FOR
PREFERENCE
VS,
[Filed Concurrently With Declaration of Ann L. Park|
FORD MOTOR COMPANY; ef ai.,
Judge: Honorable Teri L. Jackson
Defendants. Department: 503
Date: February 18, 2014
Time: 9:00 a.m.
Case Filed: | December 3, 2013
Trial Date: None Set
Defendant BELL INDUSTRIES, INC. (“Bell”) hereby opposes Plaintiffs’ Motion for Order
Granting Preference in Setting Case for Trial (the “Motion”).
L INTRODUCTION
Plaintiffs have failed to demonstrate adequate basis to grant the Motion. Plaintiff Harold
Koepke (“Mr. Koepke”) testified in deposition four to over seven hours per day from January 23 to
January 31, 2014 On January 31, Mr. Koepke testified that he walks two miles a day.” Therefore,
Declaration of Ann I. Park (“Park Decl”) 3. The January 31, 2014 deposition lasted from 9:13
a.m. until 4:14 p.m. [Park Decl. § 3 and Ex. A.]
? Rough Transcript of Deposition of Harold Koepke (Jan. 31, 2014), at 145:8-15 [Park Decl. Ex. A].
I
DEFENDANT BELL INDUSTRIES, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PREFERENCE,
4436-0059;4831-1914-6776.V1the dire health prognosis depicted by Plaintiffs in the Motion is not supported by the facts.
Plaintiffs have not satisfied subsection (a)(2) or (d) of Code of Civil Procedure 36.
More importantly, this action is not ready for a trial date. This action involves 32 defendants
and 41 years of alleged exposure to asbestos. [See Plaintiffs’ Responses to Interrogatories served
January 13, 2014, Park Decl. Ex. E.] Plaintiffs have not yet responded to Bell’s special discovery.
[Park Decl. { 8.] Defendants have not received Mr. Koepke’s medical records subpoenaed by
Recordirak. [Park Decl. § 10.] Significant discovery has yet to be completed. Defendants have a
fundamental right io due process that will be eviscerated if this action is allowed to proceed to trial
in less than 120 days. The Motion should be denied.
IL = PROCEDURAL AND FACTUAL BACKGROUND
Plaintiffs filed this complaint on December 3, 2013, naming 32 defendants, mostly auto parts
manufacturers and suppliers. Mr. Koepke was apparently diagnosed with mesothelioma on or about
July 27, 2013, four months before filing this action. [Anderson Deel. { 4.]
This action is devoid of merit, at least as to Bell, because the scientific literature is clear that
mechanics and other persons working with asbestos-containing brake and clutch products are not at
increased risk of developing mesothelioma?
Plaintiffs are now attempting to prejudice Bell and other defendants and prevent them from
preparing an adequate defense of this action by forcing an accelerated trial date.
A, This Case Is Not At Issue and Significant Discovery Needs To Be Completed.
1. This Case Is Not Yet At Issue
Plaintiffs allege that “all essential parties have been served with process.” [Bosch Decl. ¥3.]
However, not all parties have appeared in the action, According to Lexis, only 27 parties have
answered the complaint. [Park Decl. {7.] Therefore, this case is not yet at issue, and preferential
> There are over 30 peer-reviewed epidemiologic studies in the scientific literature establishing that
automotive brake mechanics have no increased risk of asbestosis, See, e.g., Goodman M., et al,
Mesothelioma and Lung Cancer Among Motor Vehicle Mechanics: a Meta-analysis, Am. Occup.
Hyg. 48:309-326 (2004); Wong O., Malignant Mesothelioma and Asbestos Exposure among Auto
Mechanics: Appraisal of Scientific Evidence, Reg. Toxicology and Pharmacology 34:170-177
(2001): Laden F., et al., Lung Cancer and Mesothelioma Among Male Automobile Mechanics: A
Review, Rev. Environ. Health 19:39-61 (2004) [Park Decl. Exs. B-D].
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DEFENDANT BELL INDUSTRIES, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PREFERENCE
4436-0059:483 1-1914-6776.v1a Hw
trial treatment is premature,
2. Significant Discovery Needs To Be Completed
This is a complex case in which Plaintiff is claiming at least 41 years (from 1962 to 2003) of
alleged exposure to asbestos. [See Plaintiffs’ Responses to Interrogatories, Park Decl. Ex. E].
Bell has propounded Special Interrogatories, Requests for Production of Documents, and
Requests for Admission to Plaintiffs. [Park Decl. ]8.] Plaintiffs’ responses are pending. Until
Bell receives Plaintiffs’ responses to Bell’s discovery, Bell does not know to what extent witnesses,
documents or claims may be identified that require further investigation.
mm. LEGAL ARGUMENTS
A. The Evidence Does Not Support Granting A Preferential Trial Date.
Code of Civil Procedure section 36, subsection (a) provides that the Court shall grant a
motion for preference on if it finds that the party has a substantial interest in the action, and “the
health of that party is such that a preference is necessary to prevent prejudicing the party’s interest
in the litigation.” Code Civ. Proc. § 36(a) (emphasis added), Alternatively, subsection (d) provides
that a motion for preference may be granted if “accompanied by clear and convincing medical
documentation that concludes that one of the parties suffers form an illness or condition raising
substantial medical doubt of survival of that party beyond six months, and that satisfies the court that
the interests of justice will be served by granting the preference.” Code Civ. Proc. § 36(d).
This court has discretion to grant motions for preference under subsection (d). Motions for
preference must be supported by declarations showing “good cause.” [Cal. Rules of Court, Rule
3.1335.] As used in deciding motions for preference, “good cause” means a showing of facts
entitling the case to priority in trial setting. The declarant must have personal knowledge of the facts
and be competent to testify thereto. [Weil & Brown, Civ. Proc. Before Trial, at § 12:272.]
In this case, plaintiffs have failed to provide medical evidence warranting preferential trial
under subsections (a) or (d) of section 36.
1. The Facts Do Not Support Plaintiffs’ Request For Preference
Plaintiffs allege in the Motion that “there exists substantial medical doubt of [Plaintiffs]
survival beyond four to six months from the date of Dr. Anderson’s Declaration.” [Notice of
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DEFENDANT BELL INDUSTRIES, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PREFERENCE
4436-0059:4831-1914-6776.v1 . :Motion, at 3.]
However, this representation is belied by the facts of the case. In fact, Mr. Koepke appeared
strong and energetic during his deposition, testifying from four to seven hours per day from January
23 to January 31,2014. [Park Decl. €3.] In addition, during his deposition on January 31, he
testified that he was feeling well, and that he was able to walk two miles a day. [/d. And Exhibit A.]
Obviously, Mr. Koepke does not appear to be an individual in imminent risk of passing.
In addition, the declaration of Dr. Anderson —- which obviously was drafted by Plaintiffs’
counsel — is contradicted by Dr. Anderson’s own notes. In his December 5, 2013 Progress Note,
Dr. Anderson notes the following:
SUBJECTIVE:
He returns to clinic for treatment of mesothelioma for cycle 4 of carboplatin and
Alimta. He is tolerating the treatment fairly well. He denies any current nausea
or vomiting, fever, or chest pain... . He is now able to walk 1% to 2 miles. He
has almost 5 days of malaise after chemotherapy, but then bounces back well.
PHYSICAL EXAMINATION:
GENERAL: Appears fairly well.
December 5, 2013 Progress Note, Bosch Decl. Ex. 8.
These facts do not support Dr. Anderson’s four- to six-month prognosis for Mr. Koepke and
do not establish that Mr. Koepke’s interests in this lawsuit will be prejudiced if a trial date more than
120 days from the hearing on this Motion is set. Accordingly, Plaintiffs have failed to meet the
requirements of either subsection (a) or (d) of Code of Civil Procedure section 36.
B. The Relevant Factors Set Forth In CRC 3.729 Weigh Against Preference
Courts have the inherent power to control the proceedings before them and formulate rules to
control those proceedings when justice demands. Rutherford v. Owens-Illinois, 16 Cal.4" 953, 966-
77 (1997). California Rule of Court 3.729 specifically requires that during any proceeding in which
a trial date is set this Court must consider 25 factors including, but not limited to:
(6) The number of parties with separate interests who will be involved in the trial;
(7) The complexity of the issues to be tried ... ;
(40) Whether all the parties have appeared in the action and, if so, the date by which they
appeared;
(14) The amount of discovery, if any, that remains to be conducted in the case;
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DEFENDANT BELL INDUSTRIES, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PREFERENCE
4436-0059:483 1-1914-6776.v1(15) The nature and extent of the law and motion proceedings anticipated, including whether
any motions for summary judgment will filed;
(17) The amount in controversy ... 5
(22) The number, availability, and locations of witnesses, including witnesses who reside
outside of the county, state, or country;
(24) The achievement of a fair, timely, and etlicient disposition of the case; and
(25) Any other factors that would significantly affect the appropriate determination of the
appropriate date of trial.
Cal. Rules of Court, Rule 3,729.
These factors do not support preference in this action. Plaintiffs have sued 32 defendants in
this case. (Factor 6). Defendants have minimal information even to evaluate the discovery to be
performed because Plaintiff just completed his deposition, has not yet responded to Bell’s special
discovery, and subpoenaed medical and employment records have not as yet been obtained. (Factors
14, 22 and 25.) Numerous defendants have not yet answered the complaint in this lawsuit. (Factor
10). Given facts uncovered during discovery, many defendants, including Bell, will have to exercise
their statutory right to file dispositive motions, (Factor 15).
The amount in controversy is potentially very high, as juries have returned astronomical
asbestos exposure verdicts, in the tens of millions of dollars. (Factor 17). Defendants believe that
Mr. Koepke likely incurred injurious exposure to asbestos over the span of four decades, and the
discovery may require the deposition of numerous witnesses. (Factor 22). Fairness and due process
dictate that defendants be allowed sufficient time to conduct discovery and prepare their defenses,
including motions for summary judgment (Factor 24), as this complex case gives rise to numerous
questions of fact and law, including complex proportionate fault analyses (Factor 25). Preference in
the face of these factors would greatly prejudice Bell and the other defendants in this action.
Cc. Plaintiff's Request for Preference Should Be Denied Because Not All Defendants
Have Answered The Complaint
As to numerous defendants (at least 5 of 32), this lawsuit is not yet at issue. [Park Decl. { 7.]
A case is commonly understood to be at issue when the pleading stage is complete: i.c., that all
defendants as to whom judgment is sought have been served, that their answers are on file, and that
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DEFENDANT BELL INDUSTRIES, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PREFERENCE
4436-0059:483 1-1914-6776.v1no further pleadings are required or expected from any party. Contract Engineers, Inc. v. Welborn,
258 Cal.App.2d 553, 557 (1968). In this case, preference is not appropriate because the case is not
yet at issue.
D. Granting Preference Will Prejudice All Defendants Because Discovery Has Only
Just Commenced
“In deciding whether to grant a preferential trial date, the trial must consider the totality of
the circumstances,” Parlen v. Golden State Sanwa Bank, 194 Cal. App. 3d 906, 912 (1987) [trial
court “must consider the ‘total picture,’ including the condition of the court calendar, dilatory
conduct by plaintiff, prejudice to defendant of an accelerated trial date, and the likelihood of
eventual mandatory dismissal if the carly trial date is denied.”}
Due process requires that defendants have "adequate opportunity to defend against the
imposition of liability." Nelson v. Adams USA, Inc., 529 U.S. 460, 466 (2000); see also. Perers v.
Superior Court, 212 Cal_App.3d 218, 227 (1989) (suggesting that a lack of adequate time for a
defendant to prepare a defense may be violative of due process guarantees.) Preparing such a defense
requires that defendants be given adequate time to conduct relevant discovery, and depriving a
defendant of such adequate time may be unduly prejudicial. San Bernardino City Unified School
District v. Superior Court, 190 Cal. App. 3d 233, 240 (1987). In the present case, setting a
preferential trial date, especially in less than 120 days, would violate Defendants’ due process rights
and would not serve "the interests of justice."
A primary consideration in determining whether a preferential trial date is appropriate is
whether the date would be so early as to deprive defendants of a reasonable opportunity to conduct
discovery or prepare for trial. Roe v. Superior Court, 224 Cal. App. 3d 642, 643, fn. 2 (1990);
Peters v. Superior Court, 212 Cal. App. 3d 218, 227 (1989). Here, Plaintiff's alleged asbestos
exposure period goes back approximately 41 years which requires a sizable investigation. In light of
this, an extensive search is necessary to determine all the products to which Mr. Koepke may have
been exposed, as well as identifying and locating potential co-workers and witnesses to Mr.
Koepke's alleged exposure. The search for records and potential witnesses is extremely time
consuming, and obtaining records, particularly certified records, is even more time-consuming. All
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DEFENDANT BELL INDUSTRIES, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PREFERENCE
4436-0059:4831-1914-6776.v1sa Dn WU Fw NW
of these witnesses may need to be deposed so that defendants can meet their obligations under
Scheiding v. Dinwiddie Construction Co., 69 Cal. App. 4th 64 (1999). Under Scheiding, defendants
have the right to establish the grounds for prospective summary judgment/adjudication. As this
Court is aware, defendants must conduct certain, client specific discovery in order to prevail on a
motion for summary judgment. Weber v, John Crane, Inc., 143 Cal. App. 4th 1443 (2006).
Additionally, defendants must propound written discovery requesting “each fact" supporting
Plaintiffs claims such that defendants may adequately prepare dispositive motions. Andrews v.
Foster Wheeler LLC, 138 Cal. App. 4th 96, 104-05 (2006).
In this case, as in all asbestos personal injury cases, investigation and discovery into other
potential sources of exposure is critical for the defense as to causation and Proposition 51 allocation.
Therefore, once co-workers and other potential witnesses are identified in discovery and deposition,
these individuals must be located, interviewed, and possibly deposed with respect to Mr. Koepke’s
alleged exposure to asbestos-containing products.
Like other asbestos-related cases, this case will inevitably hinge on expert testimony.
Therefore, after all of the medical records are received and reviewed, Defendants will also have to
retain and prepare experts, conduct all expert discovery, and otherwise prepare for trial. In addition,
Defendants may be deposing treating physicians in this case, ,
Thus, the "known" discovery issues, by themselves, are numerous and daunting, while the
"unknowns" leave these defendants and this Court to evaluate this motion and the case in a vacuum.
Given the status of discovery, Bell requests that this Court deny Plaintiffs’ motion for preference. In
the alternative, this Court should set the trial in this matter no sooner than 120 days after the hearing
on this Motion in order to allow Bel! and all other defendants adequate time to prepare defenses in
accord with their due process rights. Although Bell will work diligently to resolve all discovery’
disputes without the Court’s intervention, it is likely that given the size of this case and the number
of parties there will be at least some instances when the Court’s intervention is required to resolve
discovery disputes. Even when such disputes do not require the Court’s intervention, but especially
when they do, the process of meeting and conferring and motion work necessarily eats up valuable
pre-trial preparation time that can be little afforded with a preferential trial setting, particularly if the
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DEFENDANT BELL INDUSTRIES, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PREFERENCE
4436-0059:483 1-1914-6776.v1oO em IN DN
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time before trial is less than 120 days.
Finally, Bell would like an opportunity to file motions for summary judgment or summary
adjudication if appropriate based on the evidence. In the absence of an order by the Court altering
the timelines set out in Code of Civil Procedure section 437c (as such is routinely ordered in other
jurisdictions), it will be impossible for any defendant to seck summary judgment because fact and
expert discovery will be ongoing, potentially effecting major alterations in the landscape of evidence
on which such motions are based.
E. Trial Should Not Be Set Sooner Than 120 Days After The Hearing On Plaintiffs’
Motion
In the event this Court is inclined to grant preference, Defendants ask this Court to set a trial
date no sooner than 120 days after the hearing on this Motion. Further, justice dictates that
defendants should have a right to conduct discovery, prepare for trial and file motions for summary
judgment, The California Code of Civil Procedure§ 437(c) provides "[n]otice of the motion [for
summary judgment] and supporting papers shall be served on all other parties to the action at least
75 days before the time appointed for hearing .... The motion shail be heard no later than 30 days
before trial.” Practically, this means that Defendants need at Jeast 105 days to file a motion for
summary judgment in order to comply with the statutory notice requirement. Plaintiff is requesting
an extremely accelerated trial date. Therefore, setting a trial date of less than 120 days from the date
of the hearing would effectively deprive defendants of their right to timely file motions for summary
judgment. Defendants have a statutory right to bring such motion. Polibrid Coatings v. Superior
Court, 112 Cal, App. 4th 920, 923 (2003).
Setting a trial date at the outer limits of 120 days will barely allow Defendants time to
conduct discovery and prepare for trial, assuming that all necessary discovery is completed
immediately and without conflict, complication or delay. Given the time commonly required for the
discovery discussed above, it is likely that Defendants will be effectively precluded from filing
motions for summary judgment, which would normally occur after discovery was completed or was
close to being completed. If this Court is inclined to grant Plaintiffs request for preferential trial
setting, a trial date should be set no sooner than 120 days from the hearing on this Motion and this
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DEFENDANT BELL INDUSTRIES, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PREFERENCE
4436-0059:483 1-1914-6776.v1Court should issue additional orders to protect defendants' rights to conduct relevant discovery and
to file motions for summary judgment.
F. if A Preferential Trial Date is Granted This Court Should Issue Additional
Orders to Protect Defendants’ Rights To Conduct Discovery And File
Dispositive Motions
Tf the Court is inclined to grant Plaintiffs’ request for preferential trial setting, the Court
should set a trial date no sooner than 120 days from the hearing on this Motion. Further, Defendants
request that the Court issue the following additional Orders:
. That Plaintiffs immediately and fully identify all co-worker and product identification
witnesses on which they rely and produce them for deposition within 30 days of the
hearing on this motion;
. That Plaintiffs immediately produce any and all medical, employment, Social
Security and other pertinent records that they have in their possession and/or control;
. That fact discovery remain open until two weeks before trial and expert discovery
remain open until 5 days before the trial date absent some other stipulation between
counsel. Further, that demands for exchange of expert information should be deemed
served and the Court should set the date for disclosure of expert witnesses at 30 days
before trial, with the parties offering each expert witness responsible for offering
them for deposition on at least 7 days’ notice. Testimony by any experts not timely
and affirmatively offered for deposition by the proponent party should be excluded.
° That Motions pertaining to discovery disputes be heard on 15 days' notice.
° That summary judgment and summary adjudication motions be heard up to and
including 14 days before trial on 15 days’ notice.
Iv. CONCLUSION
For the foregoing reasons, Bell requests that Plaintiffs’ Motion be denied. If, however, this
Court is inclined to grant Plaintiffs’ Motion and preferentially set the trial in this matter, Bell
requests that the Court set a trial date no sooner than 120 days from the hearing on this Motion, and
that the Court issue the additional Orders discussed above in order to protect defendants’ statutory
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DEFENDANT BELL INDUSTRIES, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PREFERENCE
4436-0059:4831-1914-6776.v1and due process rights to conduct discovery, prepare a defense and file motions for summary
judgment.
Dated: February 3, 2014
Attprneys fokDefepflant
BELL INDUSRfES, INC.
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DEFENDANT BELL INDUSTRIES, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PREFERENCE
4436-0059:4831-1914-6776.V1Ce ND HW RB BW NY =
NN YN YY NR KR DB Be Bee Be Re em
2 3 RF A FE SNS = FS CH ADH Bw NH SF
PROOF OF SERVICE
I declare that I am over the age of eighteen (18) and not a party to this action. My business
address is 350 South Grand Ave., Suite 3300, Los Angeles, California 90071.
‘On February 3, 2014, I served the following document(s): DEFENDANT BELL
INDUSTRIES, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PREFERENCE on
the interested parties in this action as follows:
KAZAN, MCCLAIN, SATTERLEY, LYONS, DEFENSE COUNSEL
GREENWOOD & OBERMAN Listed on the Transaction Receipt located on
Jack London Market the File & ServeXpress website
55 Harrison Street, Suite 400
Oakland, CA 94607
oO 1am readily familiar with the business’ practice for collection and processing of
correspondence for mailing with the United States Postal Service, I know that the
correspondence was deposited with the United States Postal Service on the same day this
declaration was executed in the ordinary course of business. I know that the envelope was
sealed and, with postage thereon fully prepaid, placed for collection and mailing on this date
in the United States mail at, San Francisco, California.
Oo By Overnight Service: I caused the above-referenced document(s) to be deposited in a box or
other facility regularly maintained by the overnight courier, or I delivered the above-
referenced document(s) to an overnight courier service, for delivery to the above
addressee(s).
By E-Service: | electronically served the above documeni(s) via File & ServeXpress on the
recipients designated on the Transaction Receipt located on the File & ServeXpress website.
oO By Personal Service: I caused to be delivered by courier Nationwide Legal Express, such
envelope by hand to the offices of the above addressee(s).
oC By Personal Service: I delivered such envelope by hand to the offices of the addressee(s).
o By Facsimile Machine: The document was transmitted by facsimile transmission to the
number(s) indicated and was reported as complete and without error.
Executed: February 3, 2014
& (State) I declare under penalty of perjury under the laws of the State of California that the
above is true and correct.
oO (Federal) I declare that I am employed in the office of a member of the bar of this court at
whose direction the service was made.
‘da OO Chr i
“Elona C, Conchas
4436.0059
DEFENDANT BELL INDUSTRIES, INC.’ OPPOSITION TO PLAINTIFFS’ MOTION FOR PREFERENCE
4436-0059:4831-1914-6776.v1 .
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SoD Om ND BR HY FRANK D. POND (Bar No. 126191) ANN L. PARK (Bar No. 130394) ELECTRONICALLY apark@pondnorth.com KATHLEEN B. EBRAHIMI (Bar No. 214593) FILED kebrahimi@pondnorth.com ‘ Superior Court of California, POND NORTH LEP County of San Francisco 350 South Grand Avenue, Suite 3300 Los Angeles, CA 90071 FEB 03 2014 Telephone; (213) 617-6170 BY: JUDITH NUNEZ Facsimile: (213) 623-3594 Deputy Clerk Attorneys for Defendant BELL INDUSTRIES, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO HAROLD KOEPKE and Case No: CGC-13-276217 NANCY KARDIS-KOEPKE, DEFENDANT BELL INDUSTRIES, INC.’S Plaintiffs, OPPOSITION TO PLAINTIFFS’ MOTION FOR PREFERENCE VS, [Filed Concurrently With Declaration of Ann L. Park| FORD MOTOR COMPANY; ef ai., Judge: Honorable Teri L. Jackson Defendants. Department: 503 Date: February 18, 2014 Time: 9:00 a.m. Case Filed: | December 3, 2013 Trial Date: None Set Defendant BELL INDUSTRIES, INC. (“Bell”) hereby opposes Plaintiffs’ Motion for Order Granting Preference in Setting Case for Trial (the “Motion”). L INTRODUCTION Plaintiffs have failed to demonstrate adequate basis to grant the Motion. Plaintiff Harold Koepke (“Mr. Koepke”) testified in deposition four to over seven hours per day from January 23 to January 31, 2014 On January 31, Mr. Koepke testified that he walks two miles a day.” Therefore, Declaration of Ann I. Park (“Park Decl”) 3. The January 31, 2014 deposition lasted from 9:13 a.m. until 4:14 p.m. [Park Decl. § 3 and Ex. A.] ? Rough Transcript of Deposition of Harold Koepke (Jan. 31, 2014), at 145:8-15 [Park Decl. Ex. A]. I DEFENDANT BELL INDUSTRIES, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PREFERENCE, 4436-0059;4831-1914-6776.V1the dire health prognosis depicted by Plaintiffs in the Motion is not supported by the facts. Plaintiffs have not satisfied subsection (a)(2) or (d) of Code of Civil Procedure 36. More importantly, this action is not ready for a trial date. This action involves 32 defendants and 41 years of alleged exposure to asbestos. [See Plaintiffs’ Responses to Interrogatories served January 13, 2014, Park Decl. Ex. E.] Plaintiffs have not yet responded to Bell’s special discovery. [Park Decl. { 8.] Defendants have not received Mr. Koepke’s medical records subpoenaed by Recordirak. [Park Decl. § 10.] Significant discovery has yet to be completed. Defendants have a fundamental right io due process that will be eviscerated if this action is allowed to proceed to trial in less than 120 days. The Motion should be denied. IL = PROCEDURAL AND FACTUAL BACKGROUND Plaintiffs filed this complaint on December 3, 2013, naming 32 defendants, mostly auto parts manufacturers and suppliers. Mr. Koepke was apparently diagnosed with mesothelioma on or about July 27, 2013, four months before filing this action. [Anderson Deel. { 4.] This action is devoid of merit, at least as to Bell, because the scientific literature is clear that mechanics and other persons working with asbestos-containing brake and clutch products are not at increased risk of developing mesothelioma? Plaintiffs are now attempting to prejudice Bell and other defendants and prevent them from preparing an adequate defense of this action by forcing an accelerated trial date. A, This Case Is Not At Issue and Significant Discovery Needs To Be Completed. 1. This Case Is Not Yet At Issue Plaintiffs allege that “all essential parties have been served with process.” [Bosch Decl. ¥3.] However, not all parties have appeared in the action, According to Lexis, only 27 parties have answered the complaint. [Park Decl. {7.] Therefore, this case is not yet at issue, and preferential > There are over 30 peer-reviewed epidemiologic studies in the scientific literature establishing that automotive brake mechanics have no increased risk of asbestosis, See, e.g., Goodman M., et al, Mesothelioma and Lung Cancer Among Motor Vehicle Mechanics: a Meta-analysis, Am. Occup. Hyg. 48:309-326 (2004); Wong O., Malignant Mesothelioma and Asbestos Exposure among Auto Mechanics: Appraisal of Scientific Evidence, Reg. Toxicology and Pharmacology 34:170-177 (2001): Laden F., et al., Lung Cancer and Mesothelioma Among Male Automobile Mechanics: A Review, Rev. Environ. Health 19:39-61 (2004) [Park Decl. Exs. B-D]. 2 DEFENDANT BELL INDUSTRIES, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PREFERENCE 4436-0059:483 1-1914-6776.v1a Hw trial treatment is premature, 2. Significant Discovery Needs To Be Completed This is a complex case in which Plaintiff is claiming at least 41 years (from 1962 to 2003) of alleged exposure to asbestos. [See Plaintiffs’ Responses to Interrogatories, Park Decl. Ex. E]. Bell has propounded Special Interrogatories, Requests for Production of Documents, and Requests for Admission to Plaintiffs. [Park Decl. ]8.] Plaintiffs’ responses are pending. Until Bell receives Plaintiffs’ responses to Bell’s discovery, Bell does not know to what extent witnesses, documents or claims may be identified that require further investigation. mm. LEGAL ARGUMENTS A. The Evidence Does Not Support Granting A Preferential Trial Date. Code of Civil Procedure section 36, subsection (a) provides that the Court shall grant a motion for preference on if it finds that the party has a substantial interest in the action, and “the health of that party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.” Code Civ. Proc. § 36(a) (emphasis added), Alternatively, subsection (d) provides that a motion for preference may be granted if “accompanied by clear and convincing medical documentation that concludes that one of the parties suffers form an illness or condition raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference.” Code Civ. Proc. § 36(d). This court has discretion to grant motions for preference under subsection (d). Motions for preference must be supported by declarations showing “good cause.” [Cal. Rules of Court, Rule 3.1335.] As used in deciding motions for preference, “good cause” means a showing of facts entitling the case to priority in trial setting. The declarant must have personal knowledge of the facts and be competent to testify thereto. [Weil & Brown, Civ. Proc. Before Trial, at § 12:272.] In this case, plaintiffs have failed to provide medical evidence warranting preferential trial under subsections (a) or (d) of section 36. 1. The Facts Do Not Support Plaintiffs’ Request For Preference Plaintiffs allege in the Motion that “there exists substantial medical doubt of [Plaintiffs] survival beyond four to six months from the date of Dr. Anderson’s Declaration.” [Notice of 3 DEFENDANT BELL INDUSTRIES, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PREFERENCE 4436-0059:4831-1914-6776.v1 . :Motion, at 3.] However, this representation is belied by the facts of the case. In fact, Mr. Koepke appeared strong and energetic during his deposition, testifying from four to seven hours per day from January 23 to January 31,2014. [Park Decl. €3.] In addition, during his deposition on January 31, he testified that he was feeling well, and that he was able to walk two miles a day. [/d. And Exhibit A.] Obviously, Mr. Koepke does not appear to be an individual in imminent risk of passing. In addition, the declaration of Dr. Anderson —- which obviously was drafted by Plaintiffs’ counsel — is contradicted by Dr. Anderson’s own notes. In his December 5, 2013 Progress Note, Dr. Anderson notes the following: SUBJECTIVE: He returns to clinic for treatment of mesothelioma for cycle 4 of carboplatin and Alimta. He is tolerating the treatment fairly well. He denies any current nausea or vomiting, fever, or chest pain... . He is now able to walk 1% to 2 miles. He has almost 5 days of malaise after chemotherapy, but then bounces back well. PHYSICAL EXAMINATION: GENERAL: Appears fairly well. December 5, 2013 Progress Note, Bosch Decl. Ex. 8. These facts do not support Dr. Anderson’s four- to six-month prognosis for Mr. Koepke and do not establish that Mr. Koepke’s interests in this lawsuit will be prejudiced if a trial date more than 120 days from the hearing on this Motion is set. Accordingly, Plaintiffs have failed to meet the requirements of either subsection (a) or (d) of Code of Civil Procedure section 36. B. The Relevant Factors Set Forth In CRC 3.729 Weigh Against Preference Courts have the inherent power to control the proceedings before them and formulate rules to control those proceedings when justice demands. Rutherford v. Owens-Illinois, 16 Cal.4" 953, 966- 77 (1997). California Rule of Court 3.729 specifically requires that during any proceeding in which a trial date is set this Court must consider 25 factors including, but not limited to: (6) The number of parties with separate interests who will be involved in the trial; (7) The complexity of the issues to be tried ... ; (40) Whether all the parties have appeared in the action and, if so, the date by which they appeared; (14) The amount of discovery, if any, that remains to be conducted in the case; 4 DEFENDANT BELL INDUSTRIES, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PREFERENCE 4436-0059:483 1-1914-6776.v1(15) The nature and extent of the law and motion proceedings anticipated, including whether any motions for summary judgment will filed; (17) The amount in controversy ... 5 (22) The number, availability, and locations of witnesses, including witnesses who reside outside of the county, state, or country; (24) The achievement of a fair, timely, and etlicient disposition of the case; and (25) Any other factors that would significantly affect the appropriate determination of the appropriate date of trial. Cal. Rules of Court, Rule 3,729. These factors do not support preference in this action. Plaintiffs have sued 32 defendants in this case. (Factor 6). Defendants have minimal information even to evaluate the discovery to be performed because Plaintiff just completed his deposition, has not yet responded to Bell’s special discovery, and subpoenaed medical and employment records have not as yet been obtained. (Factors 14, 22 and 25.) Numerous defendants have not yet answered the complaint in this lawsuit. (Factor 10). Given facts uncovered during discovery, many defendants, including Bell, will have to exercise their statutory right to file dispositive motions, (Factor 15). The amount in controversy is potentially very high, as juries have returned astronomical asbestos exposure verdicts, in the tens of millions of dollars. (Factor 17). Defendants believe that Mr. Koepke likely incurred injurious exposure to asbestos over the span of four decades, and the discovery may require the deposition of numerous witnesses. (Factor 22). Fairness and due process dictate that defendants be allowed sufficient time to conduct discovery and prepare their defenses, including motions for summary judgment (Factor 24), as this complex case gives rise to numerous questions of fact and law, including complex proportionate fault analyses (Factor 25). Preference in the face of these factors would greatly prejudice Bell and the other defendants in this action. Cc. Plaintiff's Request for Preference Should Be Denied Because Not All Defendants Have Answered The Complaint As to numerous defendants (at least 5 of 32), this lawsuit is not yet at issue. [Park Decl. { 7.] A case is commonly understood to be at issue when the pleading stage is complete: i.c., that all defendants as to whom judgment is sought have been served, that their answers are on file, and that 5 DEFENDANT BELL INDUSTRIES, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PREFERENCE 4436-0059:483 1-1914-6776.v1no further pleadings are required or expected from any party. Contract Engineers, Inc. v. Welborn, 258 Cal.App.2d 553, 557 (1968). In this case, preference is not appropriate because the case is not yet at issue. D. Granting Preference Will Prejudice All Defendants Because Discovery Has Only Just Commenced “In deciding whether to grant a preferential trial date, the trial must consider the totality of the circumstances,” Parlen v. Golden State Sanwa Bank, 194 Cal. App. 3d 906, 912 (1987) [trial court “must consider the ‘total picture,’ including the condition of the court calendar, dilatory conduct by plaintiff, prejudice to defendant of an accelerated trial date, and the likelihood of eventual mandatory dismissal if the carly trial date is denied.”} Due process requires that defendants have "adequate opportunity to defend against the imposition of liability." Nelson v. Adams USA, Inc., 529 U.S. 460, 466 (2000); see also. Perers v. Superior Court, 212 Cal_App.3d 218, 227 (1989) (suggesting that a lack of adequate time for a defendant to prepare a defense may be violative of due process guarantees.) Preparing such a defense requires that defendants be given adequate time to conduct relevant discovery, and depriving a defendant of such adequate time may be unduly prejudicial. San Bernardino City Unified School District v. Superior Court, 190 Cal. App. 3d 233, 240 (1987). In the present case, setting a preferential trial date, especially in less than 120 days, would violate Defendants’ due process rights and would not serve "the interests of justice." A primary consideration in determining whether a preferential trial date is appropriate is whether the date would be so early as to deprive defendants of a reasonable opportunity to conduct discovery or prepare for trial. Roe v. Superior Court, 224 Cal. App. 3d 642, 643, fn. 2 (1990); Peters v. Superior Court, 212 Cal. App. 3d 218, 227 (1989). Here, Plaintiff's alleged asbestos exposure period goes back approximately 41 years which requires a sizable investigation. In light of this, an extensive search is necessary to determine all the products to which Mr. Koepke may have been exposed, as well as identifying and locating potential co-workers and witnesses to Mr. Koepke's alleged exposure. The search for records and potential witnesses is extremely time consuming, and obtaining records, particularly certified records, is even more time-consuming. All 6 DEFENDANT BELL INDUSTRIES, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PREFERENCE 4436-0059:4831-1914-6776.v1sa Dn WU Fw NW of these witnesses may need to be deposed so that defendants can meet their obligations under Scheiding v. Dinwiddie Construction Co., 69 Cal. App. 4th 64 (1999). Under Scheiding, defendants have the right to establish the grounds for prospective summary judgment/adjudication. As this Court is aware, defendants must conduct certain, client specific discovery in order to prevail on a motion for summary judgment. Weber v, John Crane, Inc., 143 Cal. App. 4th 1443 (2006). Additionally, defendants must propound written discovery requesting “each fact" supporting Plaintiffs claims such that defendants may adequately prepare dispositive motions. Andrews v. Foster Wheeler LLC, 138 Cal. App. 4th 96, 104-05 (2006). In this case, as in all asbestos personal injury cases, investigation and discovery into other potential sources of exposure is critical for the defense as to causation and Proposition 51 allocation. Therefore, once co-workers and other potential witnesses are identified in discovery and deposition, these individuals must be located, interviewed, and possibly deposed with respect to Mr. Koepke’s alleged exposure to asbestos-containing products. Like other asbestos-related cases, this case will inevitably hinge on expert testimony. Therefore, after all of the medical records are received and reviewed, Defendants will also have to retain and prepare experts, conduct all expert discovery, and otherwise prepare for trial. In addition, Defendants may be deposing treating physicians in this case, , Thus, the "known" discovery issues, by themselves, are numerous and daunting, while the "unknowns" leave these defendants and this Court to evaluate this motion and the case in a vacuum. Given the status of discovery, Bell requests that this Court deny Plaintiffs’ motion for preference. In the alternative, this Court should set the trial in this matter no sooner than 120 days after the hearing on this Motion in order to allow Bel! and all other defendants adequate time to prepare defenses in accord with their due process rights. Although Bell will work diligently to resolve all discovery’ disputes without the Court’s intervention, it is likely that given the size of this case and the number of parties there will be at least some instances when the Court’s intervention is required to resolve discovery disputes. Even when such disputes do not require the Court’s intervention, but especially when they do, the process of meeting and conferring and motion work necessarily eats up valuable pre-trial preparation time that can be little afforded with a preferential trial setting, particularly if the 7 DEFENDANT BELL INDUSTRIES, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PREFERENCE 4436-0059:483 1-1914-6776.v1oO em IN DN 10 u 12 13 14 15 16 17 ‘18 19 20 21 22 23 24 25 26 27 28 time before trial is less than 120 days. Finally, Bell would like an opportunity to file motions for summary judgment or summary adjudication if appropriate based on the evidence. In the absence of an order by the Court altering the timelines set out in Code of Civil Procedure section 437c (as such is routinely ordered in other jurisdictions), it will be impossible for any defendant to seck summary judgment because fact and expert discovery will be ongoing, potentially effecting major alterations in the landscape of evidence on which such motions are based. E. Trial Should Not Be Set Sooner Than 120 Days After The Hearing On Plaintiffs’ Motion In the event this Court is inclined to grant preference, Defendants ask this Court to set a trial date no sooner than 120 days after the hearing on this Motion. Further, justice dictates that defendants should have a right to conduct discovery, prepare for trial and file motions for summary judgment, The California Code of Civil Procedure§ 437(c) provides "[n]otice of the motion [for summary judgment] and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing .... The motion shail be heard no later than 30 days before trial.” Practically, this means that Defendants need at Jeast 105 days to file a motion for summary judgment in order to comply with the statutory notice requirement. Plaintiff is requesting an extremely accelerated trial date. Therefore, setting a trial date of less than 120 days from the date of the hearing would effectively deprive defendants of their right to timely file motions for summary judgment. Defendants have a statutory right to bring such motion. Polibrid Coatings v. Superior Court, 112 Cal, App. 4th 920, 923 (2003). Setting a trial date at the outer limits of 120 days will barely allow Defendants time to conduct discovery and prepare for trial, assuming that all necessary discovery is completed immediately and without conflict, complication or delay. Given the time commonly required for the discovery discussed above, it is likely that Defendants will be effectively precluded from filing motions for summary judgment, which would normally occur after discovery was completed or was close to being completed. If this Court is inclined to grant Plaintiffs request for preferential trial setting, a trial date should be set no sooner than 120 days from the hearing on this Motion and this 8 DEFENDANT BELL INDUSTRIES, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PREFERENCE 4436-0059:483 1-1914-6776.v1Court should issue additional orders to protect defendants' rights to conduct relevant discovery and to file motions for summary judgment. F. if A Preferential Trial Date is Granted This Court Should Issue Additional Orders to Protect Defendants’ Rights To Conduct Discovery And File Dispositive Motions Tf the Court is inclined to grant Plaintiffs’ request for preferential trial setting, the Court should set a trial date no sooner than 120 days from the hearing on this Motion. Further, Defendants request that the Court issue the following additional Orders: . That Plaintiffs immediately and fully identify all co-worker and product identification witnesses on which they rely and produce them for deposition within 30 days of the hearing on this motion; . That Plaintiffs immediately produce any and all medical, employment, Social Security and other pertinent records that they have in their possession and/or control; . That fact discovery remain open until two weeks before trial and expert discovery remain open until 5 days before the trial date absent some other stipulation between counsel. Further, that demands for exchange of expert information should be deemed served and the Court should set the date for disclosure of expert witnesses at 30 days before trial, with the parties offering each expert witness responsible for offering them for deposition on at least 7 days’ notice. Testimony by any experts not timely and affirmatively offered for deposition by the proponent party should be excluded. ° That Motions pertaining to discovery disputes be heard on 15 days' notice. ° That summary judgment and summary adjudication motions be heard up to and including 14 days before trial on 15 days’ notice. Iv. CONCLUSION For the foregoing reasons, Bell requests that Plaintiffs’ Motion be denied. If, however, this Court is inclined to grant Plaintiffs’ Motion and preferentially set the trial in this matter, Bell requests that the Court set a trial date no sooner than 120 days from the hearing on this Motion, and that the Court issue the additional Orders discussed above in order to protect defendants’ statutory 9 DEFENDANT BELL INDUSTRIES, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PREFERENCE 4436-0059:4831-1914-6776.v1and due process rights to conduct discovery, prepare a defense and file motions for summary judgment. Dated: February 3, 2014 Attprneys fokDefepflant BELL INDUSRfES, INC. 10 DEFENDANT BELL INDUSTRIES, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PREFERENCE 4436-0059:4831-1914-6776.V1Ce ND HW RB BW NY = NN YN YY NR KR DB Be Bee Be Re em 2 3 RF A FE SNS = FS CH ADH Bw NH SF PROOF OF SERVICE I declare that I am over the age of eighteen (18) and not a party to this action. My business address is 350 South Grand Ave., Suite 3300, Los Angeles, California 90071. ‘On February 3, 2014, I served the following document(s): DEFENDANT BELL INDUSTRIES, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PREFERENCE on the interested parties in this action as follows: KAZAN, MCCLAIN, SATTERLEY, LYONS, DEFENSE COUNSEL GREENWOOD & OBERMAN Listed on the Transaction Receipt located on Jack London Market the File & ServeXpress website 55 Harrison Street, Suite 400 Oakland, CA 94607 oO 1am readily familiar with the business’ practice for collection and processing of correspondence for mailing with the United States Postal Service, I know that the correspondence was deposited with the United States Postal Service on the same day this declaration was executed in the ordinary course of business. I know that the envelope was sealed and, with postage thereon fully prepaid, placed for collection and mailing on this date in the United States mail at, San Francisco, California. Oo By Overnight Service: I caused the above-referenced document(s) to be deposited in a box or other facility regularly maintained by the overnight courier, or I delivered the above- referenced document(s) to an overnight courier service, for delivery to the above addressee(s). By E-Service: | electronically served the above documeni(s) via File & ServeXpress on the recipients designated on the Transaction Receipt located on the File & ServeXpress website. oO By Personal Service: I caused to be delivered by courier Nationwide Legal Express, such envelope by hand to the offices of the above addressee(s). oC By Personal Service: I delivered such envelope by hand to the offices of the addressee(s). o By Facsimile Machine: The document was transmitted by facsimile transmission to the number(s) indicated and was reported as complete and without error. Executed: February 3, 2014 & (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. oO (Federal) I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. ‘da OO Chr i “Elona C, Conchas 4436.0059 DEFENDANT BELL INDUSTRIES, INC.’ OPPOSITION TO PLAINTIFFS’ MOTION FOR PREFERENCE 4436-0059:4831-1914-6776.v1 .