Motion-Secondary: ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS

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                                ALAN R. BRAYTON, ESQ., S.B. #73685 ELECTRONICALLY

JAMES P. NEVIN, ESQ., S.B. #220816
2]) jnevin@braytonlaw.com FILED
BRAYTON#PURCELL LLP Nicounty bf Sis Preinciecs|-1
3]) Attorneys at Law
222 Rush Landing Road 09/28/2016
4] P.O. Box 6169 dork ot the Court
Novato, California 94948-6169 Deputy Clerk

5] (415) 898-1555

Attorneys for Plaintiffs

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

11]| ROBERT ROSS and JEAN ROSS, ) ASBESTOS
) No, CGC-10-275731
12 Plaintiffs, )
gS ) MEMORANDUM OF POINTS AND
5 13 ]} vs. ) AUTHORITIES IN SUPPORT OF EX
3 ) PARTE APPLICATION TO ALLOW
Boces 14] C.C. MOORE & CO. ENGINEERS; ) FILING OF APPLICATION FOR ENTRY
as Z Defendants as Reflected on Exhibit 1 ) OF DEFAULT JUDGMENT
gs 2 15] attached to the Summary Complaint herein; )
Zeaos: and DOES 1-8500. )
ce S 16 Date: September 29, 2016
3 = Time: 11:00 a.m.
a 2 17 Dept.: 503, Hon. Garrett L. Wong
Trial Date: None
18 Action Filed: December 17, 2010
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K.llnjared.19349 pid p&a-npt-file prove-up (FIRST DRAFT) wpa IMD.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION TO ALLOW FILING OF
APPLICATION FOR ENTRY OF DEFAULT JUDGMENTINTRODUCTION

Plaintiffs attempted to file their application for default judgment against several defaulted
defendants, but the filing was rejected by the Clerk of Court on September 26, 2016 on improper
grounds. The Clerk rejected the filing upon the incorrect assumption that any amended
complaint filed after the default would ‘automatically’ undo the defaults.

In fact, as shown below, the long standing rule in California is that there is no such
automatic “opening up” of the default upon the filing of an amended complaint. The law is that
if there is no substantive amendment to the claims stated against the defaulted defendant, the
defaults are not undone and Plaintiffs may proceed to obtain default judgment based upon the
claims made in the complaint that was served upon them prior to default. In this case, the
amended complaint filed after the default did not make any substantive changes to the claims and|
the filing must be allowed.

The Office of the Clerk of Court should not be in a position of rejecting filings based
upon automation, as the permissibility of entry of default judgment despite amendment to a
complaint is a matter for the Court to decide. The Clerk rejected the application despite the
declaration of Plaintiffs' counsel that: "Since the time of service upon Defendants, amendments
have been filed to the operative complaint served on defendant on this date. Said Amendments
have not materially changed the substance of the causes of action plead against Defendants."

The Clerk of Court additionally rejected the above-referenced filing on the grounds that
Judicial Council form CIV-100 must be used. As shown below, the long-standing policy of the
court has been to allow Plaintiffs’ counsel to file long-form applications in lieu of the form,
given the extensiveness and detail of information provided. The information requested by the
form is redundant to that within Plaintiffs’ application, proposed Judgment, memorandum,
declaration and exhibits, and a requirement to file form CIV-100 is duplicative and could lead to
unnecessary confusing as to which order the Plaintiff wishes the Court to sign. Plaintiffs and
counsel seek to have the court determine that the use of this form is unnecessary on this and
future asbestos-related prove-ups.

Mt

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION TO ALLOW FILING OF
APPLICATION FOR ENTRY OF DEFAULT JUDGMENTRELEVANT PROCEDURAL HISTORY

On December 17, 2010, Plaintiffs ROBERT ROSS and JEAN ROSS filed the above-
captioned complex asbestos-related litigation. The action involves over 100 Defendants.

On March 14, 2011, Plaintiffs filed their First Amended Complaint.

On May 16, 2011, Plaintiffs filed their Second Amended Complaint.

Following the May 16, 2011 filing, Plaintiffs served the Summons and a copy of the
Complaint filed May 16, 2011 Defendants. Of those defendants so served with the Second
Amended Complaint, eight (8) failed to respond and the Clerk of Court entered default upon the
Complaint filed May 16, 2011; these defendants are, with date of Clerk's entry of default
indicated: BARNES CONSTRUCTION CO. (August 3, 2011), CINCINNATI VALVE
COMPANY (August 3, 2011), DORN REFRIGERATION AND AIR CONDITIONING
(September 6, 2011), JONES PLASTERING COMPANY (April 11, 2012), MIDSTATE
MECHANICAL, INC. (April 5, 2012), ROLLIE R. FRENCH, INC. (April 5, 2012), and SF
L, INC. (April 6, 2012).

On May 11, 2012, Plaintiffs filed their Third Amended Complaint.

Importantly, the Third Amended Complaint did not materially changed the substance of
the causes of action plead against these seven Defendants.

The sole purpose of the Third Amended Complaint was to add to the action two (2)
defendants who had not previously been included in the lawsuit, namely DURO DYNE
CORPORATION and S.J. AMOROSO CONSTRUCTION CO., INC. Neither of these
defendants are related to the seven defaulted defendants identified above, or alternate entities
thereof. The Third Amended Complaint did not expand any theories of recovery against the
seven defaulted defendants identified above or bring any other causes of action against them.
Simply put, Plaintiffs amended their complaint to bring in two more defendants and nothing
more.

On September 1, 2015, this action was removed from the trial calendar as the case had
resolved as to all non-defaulted defendants.

On March 24 and 25, 2016, Plaintiffs filed separate applications for default judgment

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION TO ALLOW FILING OF
APPLICATION FOR ENTRY OF DEFAULT JUDGMENTagainst defaulted defendants. The hearing date for the prove-up hearing was set for May 24,
2016.

On April 5, 2016, Plaintiffs filed additional separate applications for default judgment
against defaulted defendants. The hearing date for those prove-ups was set for May 26, 2016 as
the Clerk in Department 514 had not additional room on the May 24" calendar.

However, subsequent to these filings, in May 2016, the Court in Department 514 ruled
that, instead of several separate applications for individual default judgments, the Court would
entertain only one consolidated motion for all defaulted defendants and render only one
consolidated judgment form.

On May 18, 2016, and on May 23, 2016, in response to the ruling in Department 514 (the
one motion / one judgment ruling), Plaintiffs removed all prove-up motions from the court’s
calendar.

The Court in Department 514's one motion / one judgment ruling caused other similar
motions in similar cases to also have to come off calendar. This is because the prove-up motions
in those cases, and in the instant case, had to be ‘re-tooled’ to consolidate the various motions
into one omnibus motion. In addition to this requirement placed upon counsel, the Court in
Department 514 also instituted more detailed prove-up requirements, including further proof
requirements in the areas of proof of medical billing damages and proof involving plaintiffs’
economist.

Plaintiffs’ counsel completed the other pending prove-ups en mass, and by September 26,
2016, had completed the re-tooled prove-up in the instant case.

On September 26, 2016, Plaintiffs filed their Application for Entry of Default Judgment
against these seven defendants.

On September 26, 2016, without apparent review of the claims made in the Second.
Amended Complaint and the claims made in the Third Amended Complaint, the Clerk of Court
incorrectly presumed that the Third Amended Complaint filed May 11, 2012 must have
somehow changed the substance of the causes of action plead the seven defendants and refused

to file Plaintiffs’ application for default judgment.

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION TO ALLOW FILING OF
APPLICATION FOR ENTRY OF DEFAULT JUDGMENTThe refusal by the Clerk of Court came in the form of a document entitled “DEFAULT
JUDGMENT REJECT” and in substantive part stated verbatim as follows, in bold text as in the
rejection document:

THE REQUEST FOR COURT JUDGMENT COULD NOT BE ENTERED DUE

TO 1) SINCE THERE WAS A 3RD AMENDED COMPLAINT FILED ON MAY

11, 2012, A REQUEST FOR ENTRY OF DEFAULT MUST BE FILED AGAIN

FOR EACH OF THE DEFENDANT’S THAT IS TO BE DEFAULTED.

RESUBMIT REQUEST FOR ENTER OF DEFAULT (FORM CIV-100,ALSO

MARK THE COURT JUDGMENT BOX)AND MOTION FOR PROVE UP

HEARING ALONG WITH THE COURT REPORT’S FEE DOCUMENT EITHER

ON LETTERHEAD OF PLEADING PAPER, AND ALL SUPPORTING

DOCUMENTS.

A copy of the Clerk of Court’s rejection message is attached to the Declaration of James
P. Nevin as Exhibit “A”.

Automatic rejection for filing a subsequent amended complaint is not the state of the law
in California. Besides, the Clerk of Court should not be arbiter to decide such a substantive
issue. That role is reserved for a Court of Law.

MEMORANDUM OF POINTS AND AUTHORITIES

A. FILING OF AN AMENDED COMPLAINT DOES NOT AUTOMATICALLY
"OPEN UP" THE DEFAULT.

On September 26, 2016, the Clerk of Court rejected Plaintiffs' Application for Default
judgment premised, apparently, on the mistaken belief that the simple fact of an amended
complaint being filed after a default automatically eviscerates the default and makes it void.
However, the law in California, in a line of cases back to 1902, makes it clear that California law
has never had such automation.

Plaintiffs object to the Clerk’s rejection of the filing in that the presumption that an
amendment to the operative pleading (the one that was served before default) automatically
voids the default. The Clerk of Court is incorrect: Only if the amendment materially changes the|
causes plead against the defaulted defendant (e.g. adds new allegations against said defendant)
would it “open up” the default. Indeed, the only way to presume that the subsequent amendment
did “open up” the default is to — side-by-side — compare the text of pre-default complaint and the

post-default amendment.

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION TO ALLOW FILING OF
APPLICATION FOR ENTRY OF DEFAULT JUDGMENTPlaintiffs do not suggest that the Clerk of Court be in a position as arbiter over the fine
legal point of whether an amended complaint made a material change to the causes of action suc!
to warrant an “opening up” of the default. Plaintiffs respectfully submit that this is a role for the
Court to determine afier the Application for Default Judgment has been filed.

While it may be administratively easier to simply do these sorts of automatic rejections,
unfortunately for the Clerk of Court, that is not the state of the law in this State. Plaintiffs
respectfully suggest that the Clerk of Court discontinue this form of automatic rejection
immediately.

It is a well settled rule in California that there can be no automatic rejection.

In 1902, the California Supreme Court found that an amended complaint which merely
brings in new parties in which defaulting defendant is not interested, and which is not
amendment in matter of substance as to such defendant, does not open default or require service
of amended complaint on defaulting party. San Diego Sav. Bank v. Goodsell (1902) 137 Cal
420, 70 P 299, 1902 Cal LEXIS 577. San Diego Sav. Bank is cited for this proposition in a
succession of cases from 1902 through to 2007.

The Court in Crestmar Owners Assn. v. Stapakis, 157 Cal. App. 4th 1223, 1224 (Cal.
App. 2d Dist. 2007) explains that an amendment to a complaint must contain substantive
changes in order to require an opportunity for a defaulted defendant to have a new opportunity to
file an answer. Crestmar cites Butler v. Roma-Lind, Inc., 190 Cal. App. 2d 861, 861 (Cal. App.
2d Dist. 1961) which cites Wvoming Pacific Oil Co. v. Preston, 171 Cal. App. 2d 735, 738 (Cal.
App. 2d Dist. 1959); which cites Rardin Logging Co. v. Bullok, 120 Cal. App. 2d 67, 67 (Cal.
App. 1953)

The Court in Rardin Logging Co. v. Bullok, (1953) explained that if an amendment to a
complaint is not in a matter of substance the default against a defendant is good even though he
was not served with the amended complaint. Rardin Logging Co. y. Bullok, (1953) cites three
cases, Stack, Zierath, and San Diego Sav. Bank vy, Goodsell:

It is a settled rule that where, after the default of a defendant has been entered, a

complaint is amended in matters of substance as distinguished from mere matters of form, the

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION TO ALLOW FILING OF
APPLICATION FOR ENTRY OF DEFAULT JUDGMENTamendment opens the default, and unless the amended pleading be served on the defaulting
defendant, no judgment can properly be entered on the default. Stack v. Welder, 3 Cal. 2d 71, 72
(Cal. 1935)

Where amendment of complaint goes only to form, and not to substance, default is not
open, and service of such amended complaint on defaulting defendants is unnecessary.

Zierath v. Claggett (1920, Cal App) 46 Cal App 15, 188 P 837, 1920 Cal App LEXIS 664.

Amended complaint which merely brings in new parties in which defaulting defendant is
not interested, and which is not amendment in matter of substance as to such defendant, does not
open default or require service of amended complaint on defaulting party.

San Diego Sav. Bank v. Goodsell (1902) 137 Cal 420, 70 P 299, 1902 Cal LEXIS 577.

When amendments to a complaint contain substantive changes, a defaulting defendant
against whom the court has not yet entered judgment has the right to appear in the action to
answer the amended complaint Crestmar Owners Assn. v. Stapakis, 157 Cal. App. 4th 1223,
1224 (Cal. App. 2d Dist. 2007) emphasis added. [Citing Butler.]

The Court in Crestmar stated:

When amendments to a complaint contain substantive changes, Hartford notes,
a defaulting defendant against whom the court has not yet entered judgment has
the right to appear in the action to answer the amended complaint. (Ostling v.
Loring (1994) 27 Cal.App.4th 1731, 1744 [33 Cal. Rptr. 2d 391]; Ford v. Superior
Court (1973) 34 Cal. App. 3d 338, 342 [109 Cal. Rptr. 844]; Weil & Brown, Cal.
Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) J 6:698, p.
6-174 et seq.; 40A Cal.Jur.3d (2006) Judgments, § 32, p. 64.) The trial court
denied the motion to vacate because it found no “material difference” between
the allegations of the original and amended complaints.

Hartford contends the court erred in finding the amended complaint contained no
substantive changes. It seeks support for its contention principally from the court's
rulings on Stapakis's motions for judgment on the pleadings and summary
judgment. Hartford notes that the court granted judgment on the pleadings (albeit
‘with leave to amend) on the ground the complaint was time-barred, but found the
lawsuit was timely when it denied summary judgment after Crestmar amended its
complaint. Hartford reasons amendments to a complaint that snatch victory from
the jaws of defeat must be material. Hartford additionally argues the amendments
were material because, as Hartford interprets the record, they triggered the court's
conclusion that appellants were equitably estopped from asserting the statute of
limitations against Crestmar.

We find that even if we assume for purposes of this appeal that Crestmar's
amendments were substantive, Hartford's assignment of error fails because it
cannot show that its not being served a copy of the amended complaint
prejudiced it. (Butler v, Roma-Lind, Inc. (1961) 190 Cal. App. 2d 861,

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION TO ALLOW FILING OF
APPLICATION FOR ENTRY OF DEFAULT JUDGMENT864-865 [12 Cal. Rptr. 371] [court's error in not finding amendments were not
substantive does not make judgment void].)

Crestmar Owners Assn. y. Stapakis (2007) 157 Cal. App. 4th 1223, 1224
(Cal. App. 2d Dist. 2007), emphasis added.

Where a court renders a default judgment after an amendment to the complaint which has
not been served on the defendant, it has jurisdiction to determine whether or not the matter added
by the amendment is matter of substance. Its determination of that question even though
erroneous does not render its judgment void. Butler v. Roma-Lind, Inc., 190 Cal. App. 2d 861,
861 (Cal. App. 2d Dist. 1961) [Citing Wyoming Pacific.]

From Butler: “Appellant also contends that the amendment of the complaint created a
new cause of action and opened the default, and that the default entry and default judgment were
void. A question arises as to whether the complaint was amended in a matter of substance.
L.]

If an amendment to a complaint is not in a matter of substance, a default against
defendant is good even though he is not served with the amended complaint. Wyoming Pacific
Oil Co. v. Preston, 171 Cal. App. 2d 735, 738 (Cal. App. 2d Dist. 1959) [Citing Rardin].

If an amendment to a complaint is not in a matter of substance the default against a
defendant is good even though he was not served with the amended complaint.

Rardin Logging Co. v. Bullok, 120 Cal. App. 2d 67, 67 (Cal. App. 1953) — [Citing Zierath , San
Diego Sav. Bank v. Goodsell and Stack ]

Where amendment of complaint goes only to form, and not to substance, default is not
open, and service of such amended complaint on defaulting defendants is unnecessary.

Zierath v. Claggett (1920, Cal App) 46 Cal App 15, 188 P 837, 1920 Cal App LEXIS 664.

Amended complaint which merely brings in new parties in which defaulting defendant is
not interested, and which is not amendment in matter of substance as to such defendant, does not
open default or require service of amended complaint on defaulting party.

San Diego Sav. Bank v. Goodsell (1902) 137 Cal 420, 70 P 299, 1902 Cal LEXIS 577.

It is a settled rule that where, after the default of a defendant has been entered, a

complaint is amended in matters of substance as distinguished from mere matters of form,

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION TO ALLOW FILING OF
APPLICATION FOR ENTRY OF DEFAULT JUDGMENTthe amendment opens the default, and unless the amended pleading be served on the defaulting
defendant, no judgment can properly be entered on the default. Stack v. Welder, 3 Cal. 2d 71, 72
(Cal. 1935), emphasis added.

Amendments as to Form

A defaulting defendant is entitled to be served by an amended complaint when the
amendment is as to a matter of substance and not a mere matter of form. The reason for this rule
is plain, A defendant is entitled to opportunity to be heard upon the allegations of the complaint
on which judgment is sought against him. Thompson v. Cook, (1942) 20 Cal. 2d 564, 565

The right to answer an amended pleading is one of which a party cannot be deprived even
after entry of a default against him on the original pleading; for where a plaintiff amends in
matter of substance, he, in effect, opens the default on the original pleading, and must serve his
amended pleading upon all the parties, including the defaulting defendant. Thompson v.
Johnson, (1882) 60 Cal. 292, 295

When complaint is amended in substance, as distinguished from mere matter of form, it
operates to open default and must be served on all adverse parties affected, including defaulting
party. Sheehy v. Roman Catholic Archbishop (1942, Cal App) 49 Cal App 2d 537, 122 P2d 60,
1942 Cal App LEXIS 845.

A defendant is entitled to opportunity to be heard upon the allegations of the complaint
on which judgment is sought against him and where, after default has been entered, a complaint
is amended in matter of substance as distinguished from mere matter of form, the amendment
opens the default, and unless the amended pleading be served on the defaulting defendant, no
judgment can properly be entered. Leo v. Dunlap (1968, Cal App 2d Dist) 260 Cal App 2d 24,
66 Cal Rptr 888, 1968 Cal App LEXIS 1817.

Amendments to only add new parties

Amended complaint which merely brings in new parties in which defaulting defendant is
not interested, and which is not amendment in matter of substance as to such defendant, does not
open default or require service of amended complaint on defaulting party. San Diego Say. Bank

v. Goodsell (1902) 137 Cal 420, 70 P 299, 1902 Cal LEXIS 577.

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION TO ALLOW FILING OF
APPLICATION FOR ENTRY OF DEFAULT JUDGMENTFailure to serve amended complaint did not render default judgment void because
amendment did not constitute change in substance. People v. Mendocino County Assessor's
Parcel No. 056-500-09 (1997) 58 CA4th 120, 126.

B. THE CLERK'S SUGGESTION TO RE-FILE DEFAULTS IS ILL-ADVISED
FOR PLAINTIFFS

In the Clerk of Court’s rejection message of September 26, 2016, the rejecting clerk
advises Plaintiffs on what the Clerk’s office believes is the correct course of action to cure their
(improper) automatic rejection. Specifically, to re-file a request for entry of default.
Unfortunately, that suggestion is ill-advised for Plaintiffs. This is because, to follow the Clerk of|
Court’s logic, the true course of action would be as follows: (1) First, seek leave of court, by
way of an ex parte application, to set aside each of the seven defaults. This is because a
defendant is either properly defaulted or is not. If the defaults were faulty — and they are not —
then the proper procedure is to set aside the defaults and then to file a new default request. (2)
Next, to follow the logic implied in the Clerk’s rejection, the Third Amended Complaint and
Summons would need to be service upon each of the seven defendants, giving each another
opportunity to file an Answer, and only then (re-)request default based on failure to answer the
Third Amended Complaint.

To follow this logic would be tantamount to Plaintiffs losing their case against all
defaulted defendants.

This is because it has been more than three (3) years from the initial filing of this action
on December 17, 2010. California Code of Civil Procedure (“C.C.P.) Section 583.210 permits
service of defendant only within this limited time period.

On the other hand, Local Rule 6.5 C states, in pertinent part, that “[a]bsent a showing of
good cause, the Court will not enter a several judgment against a defaulted defendant until
resolution of the entire action.”.

This places Plaintiffs in the proverbial “Catch-22". The Clerk’s suggestion does not
work. By the time this case resolved as to active defendants, three years had passed.

To require a re-default would take away Plaintiffs’ ability to recover from defendants wh

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION TO ALLOW FILING OF
APPLICATION FOR ENTRY OF DEFAULT JUDGMENTwere properly served yet refused to respond to the Summons and Complaint. As show in the
Application for Default Judgment which Plaintiffs are trying to file, these seven defendants are
culpable for Plaintiff ROBERT ROSS’ asbestos-related cancer. Justice requires that Plaintiffs be}
allowed to file their application so the Court may determine if Plaintiffs have proved-up their
case against these seven defaulted defendants.

Cc. THE CLERK'S REJECTION FOR FAILURE TO USE FORM CIV-100 IS

REDUNDANT, IRRELEVANT AND INAPPROPRIATE GIVEN THE
COMPLEXITY OF PLAINTIFFS' PROVE-UP

For years, Plaintiffs’ counsel has submitted long-form applications to the Court for prove-
up on defaulted defendants. This is due to the complexity of the issues involved and that Judicial
Council Form CIV-100 is inadequate to completely state all of Plaintiffs’ claims and proof. In
addition, form CIV-100 also contains an Order section. Plaintiff must use long-form pleading
anyway to adequately lay out the proof to the satisfaction of Department 514. The Court in
Department 514 has never made CIV-100 be required, nor has the Court recorded the judgment
upon that form. To also be required to use CIV-100 would be redundant and confusing as it is
the long-form pleading and long-form proposed Judgment that Department 514 will use.
Respectfully, it appears to counsel that this is a matter of form over substance. Rejection for not
using an inadequate permissive form should not be allowed. It causes wasted resources for no
apparent benefit to Department 514 who decides the prove-ups.

D. THE COURT HAS THE DISCRETION TO ORDER THE CLERK OF COURT

TO ALLOW THE FILING AS THE CLERK OF COURT IS ILL-SUITED TO
DETERMINE THE "OPENING UP" OF THE DEFAULT

Nothing in the California Code of Civil Procedure, California Rules of Court, or the local
rules of this Court prevents this Court from instructing the Clerk of Court to allow the filing of
the Application for Default Judgment, especially in a case where the Clerk of Court appears to be
exercising a role which would be assumed only by the Court — that of determining the sufficiency
of the standing to obtain judgment. Furthermore, C.C.P. § 128 vests this Court with the
discretion to grant plaintiffs’ requested relief pursuant to the Court’s authority to control the
proceedings before it.

California Code of Civil Procedure § 128 provides:

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION TO ALLOW FILING OF
APPLICATION FOR ENTRY OF DEFAULT JUDGMENT(a) Every court shall have the power to do all of the following:
(3) To provide for the orderly conduct of proceedings before it,
or its officers.

By yielding to the Court to decide the matters of whether the filing of the Third
Amended Complaint did not materially change the allegations upon which defendants were
defaulted (the allegations within the Second Amended Complaint served upon them) judicial and
litigant economy would be promoted; in each instance, counsel would have to file in each and
every instance a similar motion to allow the filing of the motion to allow the filing of the motion.
To do otherwise would needlessly force plaintiff and this Court to expend tremendous time and
expense in an effort to simply allow a matter to be decided by the Court instead of the Clerk of
Court. A hearing before a court of law is the place for determination if an amended complaint
substantive changed in pleading in complex litigation and not in the offices of the Clerk of Court
without hearing.

The determination of whether the filing of an amended complaint amounts to a
substantive changed is a question of law. In such complex litigation, the Court should make
these determinations.

In light of the fact that the simple filing of a post-default amended complaint does not
automatically void all defaults, and the public policy considerations favoring plaintiff's request,
Plaintiffs respectfully requests this Court, pursuant to C.C.P. § 128, order the Clerk of Court to
allow the filing of the Application for Default Judgment. In addition, Plaintiffs seek to be
relieved from filing the redundant and inappropriate form CIV-100 in complex asbestos prove-up|
applications.

Dated: September 27, 2016 BRAYTON*PURCELL LLP

By: /s/ James P. Nevin
James P. Nevin
Attorneys for Plaintiffs

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION TO ALLOW FILING OF
APPLICATION FOR ENTRY OF DEFAULT JUDGMENT