Motion,Ex Parte: HARRY HECKET et al VS. ASBESTOS DEFENDANTS (BP) AS REFLECTED ON EXHIBITS et al

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DAVID A. GIFFORD, SBN 85909
DAVID J. HOLCOMB, SBN 121544

STEVENS, DRUMMOND & GIFFORD ELECTRONICALLY
1910 OLYMPIC BOULEVARD, SUITE 250 FILED

WALNUT CREEK, CALIFORNIA 94596 Superior Court of California,
TEL: (925) 944-5550 County of San Francisco
FAX: (925) 256-9669 MAY 29 2009

GORDON PARK-LI, Clerk
BY: JUANITA D. MURPHY

Attorneys for Defendant Deputy Clerk

COOPER INDUSTRIES, LLC
£/k/a COOPER INDUSTRIES, INC.

SUPERIOR COURT OF THE STATE OF CALIFORNIA

CITY & COUNTY OF SAN FRANCISCO

HARRY HECKET and ARA LYNN CASE NO. 274330

HECKET,
DEFENDANT COOPER INDUSTRIES,
Plaintiffs, LLC'S NOTICE OF NON-OPPOSITION
TO ITS MOTION FOR SUMMARY
vs. JUDGMENT AND REPLY TO

PLAINTIFFS’ OBJECTION TO

COOPER’S MOTION FOR SUMMARY
ASBESTOS DEFENDANTS (BP),

JUDGMENT
Defendants. DATE: June 5, 2009

TIME: 9:30 a.m.

DEPT: 302

JUDGE:

Hon. Charlotte Walter Woolard

TRIAL DATE: July 6, 2009

DEFENDANT COOPER INDUSTRIES, LLC’S NOTICE OF NON-OPPOSITION TO
ITS MOTION FOR SUMMARY JUDGMENT

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that defendant COOPER INDUSTRIES, LLC

f£/k/a COOPER INDUSTRIES, INC. (“COOPER”) was not timely served

NOTICE OF NON-OPPOSITION TO ITS MOTION FOR SUMMARY JUDGMENT AND REPLY TO
PLAINTIFFS’ OBJECTION TO COOPER'S MOTION FOR SUMMARY JUDGMENT
COOPER INDUSTRIES, LLCa

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with an opposition to its motion for summary judgment.

COOPER served plaintiffs with its Motion for Summary
Judgment on March 20, 2009. Pursuant to Code of Civil Procedure
Section 437c(b) (2), any opposition to COOPER’s motion was to be
served and filed no later than 14 court days preceding the
noticed or continued hearing date, or by May 22, 2009.

Plaintiffs waited five days later, until May 27, 2009 (after
receiving COOPER’s meet and confer letter on May 26, 2009) to
serve COOPER via facsimile with its objection to COOPER’s Motion
for Summary Judgment.

Plaintiffs may argue that COOPER is listed on the proof of
service of their objection dated May 22, 2009. However,
plaintiffs noticeably failed to include COOPER on the service
recipient list of their objection, as indicated in LexisNexis
File & Serve transaction 25328641, dated May 22, 2009. Moreover,
plaintiffs made no attempt to timely serve their objection upon
COOPER by any other means. (Decl. of David J. Holcomb, 1 4)

COOPER respectfully requests that the Court grant its Motion
for Summary Judgment in the entirety.

DEFENDANT COOPER INDUSTRIES, LLC’S REPLY TO PLAINTIFFS’ OBJECTION
TO COOPER'S MOTION FOR SUMMARY JUDGMENT

Plaintiffs’ objection to COOPER’s Motion for Summary
Judgment is not well taken for the following reasons: Firstly,

plaintiffs’ do not dispute timely service and notice of COOPER’ s,

NOTICE OF NON-OPPOSITION TO ITS MOTION FOR SUMMARY JUDGMENT AND REPLY TO
PLAINTIFFS’ OBJECTION TO COOPER'S MOTION FOR SUMMARY JUDGMENT
COOPER INDUSTRIES, LLCMotion for Summary Judgment. Secondly, plaintiffs failed to
timely serve their objection upon COOPER. Plaintiffs’ objection
to COOPER’s Motion as untimely, therefore, lacks any factual
support and should be overruled.

I. COOPER’S Motion for Summary Judgment was Timely Served upon
Plaintiffs

Plaintiffs do not dispute that COOPER timely served
plaintiffs with its Motion for Summary Judgment on Friday, March
20, 2009, 75 court days prior to the June 5, 2009 hearing on
COOPER’s Motion, as required under C.C.P. 437c(a). (Plaintiff's
Objection, pp. 3:1-5) (Decl. of David J. Holcomb, @ 2)

On Monday, March 23, 2009, the Clerk of Court noticed a
typographical error in COOPER’s filing whereby the hearing date
was incorrectly set on Saturday, June 6, 2009. Immediately after
being notified of the typo, COOPER re-filed the Motion, now
bearing the correct hearing date of June 5, 2009, and again
served all parties on March 23, 2009. Besides altering the
hearing date, COOPER made no other changes. (Decl. of David J.
Holcomb, 93)

Only a few hours, at most, lapsed between the notice of the
Clerk of Court’s rejection of COOPER’s pleading and filing of the
corrected pleading. Plaintiffs do not claim any prejudice due to
the few hours of uncertainty as to hearing date, nor is any
evident.

Plaintiffs made no effort to meet and confer with COOPER on,

NOTICE OF NON-OPPOSITION TO ITS MOTION FOR SUMMARY JUDGMENT AND REPLY TO
PLAINTIFFS’ OBJECTION TO COOPER'S MOTION FOR SUMMARY JUDGMENT
COOPER INDUSTRIES, LLCA Fw Nw

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this issue in over two months since COOPER filed and served its
Motion for Summary Judgment. Instead, plaintiffs chose to object
to COOPER’s Motion on the unsubstantiated grounds it was not
timely served.

Il. Plaintiffs’ Objection to COOPER’s Motion for Summary Judgment
was not Timely Served upon Cooper

Not only is plaintiffs’ objection unsupported by any facts,
as explained above, plaintiffs also failed to timely serve the
objection on COOPER. Plaintiffs failed to include Cooper on the
recipient list for LexisNexis File & Serve transaction 25328641,
dated May 22, 2009, and made no attempt to timely serve COOPER by
any other means. (Decl. of David J. Holcomb, { 4)

COOPER became aware of plaintiffs’ objection on May 26,
2009, and attempted to contact plaintiffs via telephone, to no
avail. On the same day, Cooper served a meet and confer letter
upon plaintiffs to determine if plaintiffs had any substantive
opposition to COOPER’s Motion for Summary Judgment. Plaintiffs
did not respond, nor indicate any substantive opposition to the
motion. (Decl. of David J. Holcomb, 9 5) The next day, on May
27, 2009, five days late, plaintiffs finally served COOPER via
facsimile with the objection. (Decl. of David J. Holcomb, 1 4)
TIL. Conclusion

If plaintiffs had any evidence to support an opposition to
COOPER’s Motion for Summary Judgment, they could have

substantively responded and appraised the Court as to why

NOTICE OF NON-OPPOSITION TO ITS MOTION FOR SUMMARY JUDGMENT AND REPLY TO
PLAINTIFFS’ OBJECTION TO COOPER'S MOTION FOR SUMMARY JUDGMENT
COOPER INDUSTRIES, LLCoO Om I HN

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COOPER’s Motion should be denied. Instead, they try to distract
the Court from the complete failure of proof in this case by
mischaracterizing COOPER’s service of its Motion.

Plaintiffs cannot provide any admissible evidence in
opposition to COOPER’s Motion for Summary Judgment. COOPER
respectfully requests that the Court grant its Motion for Summary
Judgment in the entirety.

REQUEST FOR RELIEF BASED UPON EXCUSABLE NEGLECT OF COUNSEL FOR
DEFENDANT COOPER

The typographical error pertaining to the date of hearing on
COOPER’s Motion for Summary Judgment clearly constitutes an
instance of mistake, inadvertence or excusable neglect on behalt
of counsel for COOPER under C.C.P 473(a)(i) & (b). If the Court
determines that plaintiffs were somehow prejudiced by a few hours
uncertainty as to the hearing date, COOPER respectfully requests
the Court briefly continue the hearing date to allow plaintiffs
to file any substantive opposition to COOPER’s Motion for Summary

Judgment, although plaintiffs apparently have none.

Dated: May 29, 2009 STE S DRUMMOMD & GIFFORD

By:

DAVID J. HOL¢omB
Attorneys for Defendant
COOPER INDUSTRIES, LLC

NOTICE OF NON-OPPOSITION TO ITS MOTION FOR SUMMARY JUDGMENT AND REPLY TO
PLAINTIFFS’ OBJECTION TO COOPER'S MOTION FOR SUMMARY JUDGMENT
COOPER INDUSTRIES, LLC