On May 08, 2008 a Order was filed involving a dispute between Pique, Frederick, Pique, Godofredo, Pique, Gregory, Pique, Rosita, Sanchez, Marlene, and All Asbestos Defendants, Allis-Chalmers Corporation Product Liability Trust, Asbestos Defendants, Borg-Warner Corporation By Its Successor In, Carlisle Corporation, Caterpillar, Inc., Cbs Corporation, A Delaware Corporation, F K A, Cbs Corporation (Fka Viacom Inc., Fka, Coltec Industries, Inc., Crane Co., Csk Auto, Inc., Cummins Inc., Daimler Trucks North America Llc, Dana Companies, Llc, Deere & Company, Designated Defense Counsel, Does 1-8500, Douglass Insulation Company, Inc., Federal-Mogul Asbestos Personal Injury, Ford Motor Company, Foster Wheeler Llc, Garlock Sealing Technologies, Llc, General Motors Corporation, Heil Co., Honeywell International, Inc., Honeywell International Inc., F K A Alliedsignal,, Hopeman Brothers, Inc., Imo Industries Inc., J.T. Thorpe & Son, Inc., Leslie Controls, Inc., Macarthur Company, Metropolitan Life Insurance Company, Navistar, Inc., Navistar, Inc.,, Paccar Inc., Parker Hannifin Corporation, Plant Insulation Company, Pneumo Abex Llc, Pneumo Abex Llc, Successor-In-Interest, Quintec Industries, Inc., Rapid-American Corporation, Scandura, Inc., The Goodyear Tire & Rubber Company, The Heil Co.,, Thomas Dee Engineering Co., Inc., Thomas Dee Engineering Company, Tube City Ims Corporation, Utility Trailer Manufacturing, Utility Trailer Manufacturing Company, Western Asbestos Company, Western Macarthur Company, for civil in the District Court of San Francisco County.
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PETER A. LINDH (061907) JENNIFER T, SANCHEZ (191548) CHELSEA D. YUAN (240559) ELECTRONICALLY GIBSON ROBB & LINDH LLP FILED 100 First St., 27"" Floor Superior Court of California, San Francisco, California 94105 County of San Francisco Telephone: (415) 348-6000 Facsimile: (415) 348-6001 coMAY 20.2009. erk Attorneys for Defendants BY WILLIAM vw Naputy Clerk THE HEIL CO., d.b.a. HEIL TRAILER INTERNATIONAL and UTILITY TRAILER MANUFACTURING IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO GODOFREDO PIQUE, ASBESTOS Case No.: CGC-08-274659 THE HEIL CO., d.b.a. HEIL TRAILER Plaintiff, INTERNATIONAL and UTILITY TRAILER MANUFACTURING’S CONDITIONAL NON-OPPOSITION TO PLAINTIFF’S MOTION FOR ORDER GRANTING PREFERENCE IN SETTING CASE FOR TRIAL; ADVANCING CURRENT TRIAL DATE, SEVERING CASE FROM GROUP AND SPECIALLY ASBESTOS DEFENDANTS (BP) As SETTING; AND EXTENDING Reflected on Exhibits B, B-1, C, H, I; and DISCOVERY CUTOFF DOES 1-8500; and SEE ATTACHED LIST, Date: June 4, 2009 Time: 9:30 a.m. Room: Hon. James McBride Defendants. Dept. 206 er Se Trial Date: December 14, 2009 I. INTRODUCTION Defendants THE HEIL CO., d.b.a. HEIL TRAILER INTERNATIONAL (“Heil”) and UTILITY TRAILER MANUFACTURING (“Utility”) do not in principle oppose Plaintiff GODOFREDO PIQUE’s (“Plaintiff) Motion for Order Granting Preference in Setting Case for Trial; Advancing Current Trial Date, Severing Case from Group and Specially Setting; and Extending Discovery Cutoff, but do oppose setting this case for trial on a date less than 120 days THE HE. CO dba NETL TRAILER INTERNATIONAL ani UTILITY TRAILER MANUFACTURINGS CONDITIONAL NON-OPPOSITION TO PLAINTIFF'S MOTION CASE NO. CGC-08-274659 ; OUR FILE NO. 80023610oD 2 em I DH FF Ww HL from the hearing on Plaintiff's motion. Defendants Heil and Utility condition their non- opposition on the Court setting the trial date 120 days from the date of hearing, thereby permitting Defendants Heil and Utility adequate time to conduct reasonable investigation and discovery, file motions, evaluate the case for settlement purposes, and prepare for trial. I FACTUAL BACKGROUND Plaintiff filed his initial complaint on May 8, 2008. Plaintiff was deposed in July and August 2008. This included Plaintiff's direct testimony for trial preservation. Seven months later, on December 15, 2008, Plaintiff amended his complaint, adding numerous new defendants including Defendants Heil and Utility. Defendants Heil and Utility timely filed their answers in February 2009. Expert discovery remains to be completed. Plaintiffs motion for preference is based on Dr. Herman Bruch’s declaration, stating that there is substantial medical doubt of Plaintiff's survival beyond six months. While Plaintiff's motion does not offer a stipulation regarding summary judgment, the proposed order lodged with the motion proposes that the summary judgment hearings be set up to 15 days before trial and on 15 days notice. WI. LEGAL ARGUMENT California Code of Civil Procedure §36(d) requires a showing of good cause “which satisfies the court that the interests of justice will be served by granting the preference.” Specifically, the Court must consider whether an early trial setting will deprive Defendants of a reasonable opportunity to conduct discovery or prepare for trial, which may violate Defendants’ right to due to process. See, Roe v. Superior Court, 224 Cal. App. 3d 642 (1990); Peters v. Superior Court, 212 Cal. App. 3d 218 (1989). The Court must take into account the totality of the circumstances when determining whether to grant a motion for trial preference. See, Salas v. Sears, 42 Cal. 3d 342 (1986); Parlen v. Golden State Sanwa Bank, 194 Cal. App. 3d 906 (1987). Defendants Heil and Utility have been in this case for only three months. A trial date set in less than 120 days would effectively preclude Defendants Heil and Utility from filing a motion for summary judgment. Such a motion cannot in good faith be filed without evidence to support it. Such timing would not allow Defendants Heil and Utility to obtain responses to client- specific discovery, evaluate the evidence, or pursue third party discovery. Such timing would FRENEIL CO, db VEIL TRAILER DUTERNATIONAL and UTILITY TRAILER MANUFACTUIING'S CONDITIONAL NON-OPPOSITION TO PLAINTIFF'S MOTION 2 CASE NO, CGC-08-274659 ; OUR FILE NO, HO0236HCcertainly not allow enough time to complete discovery and prepare a summary judgment motion even under the shortened notice. IV. CONCLUSION Based upon the foregoing, if this Court grants Plaintiffs motion for preference, Defendants Heil and Utility respectfully request that the Court’s order also provide that trial be set for a date no earlier than 120 days from the date of the hearing on this motion. Defendants Heil and Utility also request that the other proposed stipulations set forth in Plaintiff's proposed order regarding discovery and summary judgment hearing and notice be part of the court’s order. Dated: May 20, 2009 GIBSON ROBB & LINDH LLP Yulia Soffer Zl Chelsea D. Yiian Attorney for Defendants THE HEIL CO., d.b.a. HEIL TRAILER INTERNATIONAL and UTILITY TRAILER MANUFACTURING ‘THE HEIL CO, da, HEIL TRAILER INTERNATIONAL and UTILITY TRAILER MANUFACTURING 'S CONDITIONAL NON-OPPOSITION TO PLAINTIFF'S MOTION 3 CASE NO. CGC-08-274059 ; OUR FILE NO. 690236CPROOF OF SERVICE BY ELECTRONIC TRANSMISSION 1 am employed in the County of San Francisco, State of California. I am over the age of eighteen (18) and not a party to this action. My business address is GIBSON ROBB & LINDH LLP 100 First Street, 27" Floor, San Francisco, California 94105. On May 20, 2009, I served the within document described as: THE HEIL CO., d.b.a. HEIL TRAILER INTERNATIONAL and UTILITY TRAILER MANUFACTURING’S CONDITIONAL NON-OPPOSITION TO PLAINTIFF'S MOTION FOR ORDER GRANTING PREFERENCE IN SETTING CASE FOR TRIAL; ADVANCING CURRENT TRIAL DATE, SEVERING CASE FROM GROUP AND SPECIALLY SETTING; AND EXTENDING DISCOVERY CUTOFF On the recipients designation on the Transaction Receipt located on the LexisNexis File & Serve website. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on May 20, 2009, at San Francisco, California. her ijuthoon) Alice Knudsen THEMEN CO, dba HEIL TRAILER INTERNATIONAL and UTILITY TRAILER MANUFACTURING 'S CONDITIONAL NON-OPPOSITION TO PLAINTIFF'S MOTION 4 CASE NO. CGC-08-274659 ; OUR FILE NO. B00236HC