On December 17, 2010 a Order was filed involving a dispute between Ross, Jean, Ross, Robert, and Acco Engineered Systems, Inc., Advanced Mechanical, Advance Mechanical Contractors, Inc., Air Systems Mechanical Contractor, A & K Heating Company, Inc., Albay Construction Company, Allen-Simmons Heating & Sheet Metal Company Inc., Allied Fire Protection, Allied Sprinkler Company, Inc., Allsberry Mechanical Corporation, Anderson, Rowe & Buckley, Inc., Associated Insulation Of California, A. Teichert & Son, Inc., Balliet Bros. Construction Corporation, Banner Drywall & Painting Co. Inc., Barnes Construction Co., Bayer Cropscience Inc., Bayer Cropscience, Inc., Successor To Amchem, Bell Products Inc., Beta Mechanical Contractors, L.P., Bragg Investment Company, Inc., Cahill Construction Co., Inc., Cahill Construction Services, Inc., Cahill Contractors, Inc., California Drywall Co., Castro Construction, Inc., C.C. Moore & Co. Engineers, Cincinnati Valve Company, Cjr Plastering, Clausen-Patten, Inc., Clausen-Patten, Inc., A Dissolved Corporation, Climate Air, Inc., Climate Control Co., Inc., Collins Electrical Company, Inc., Commair Mechanical Services, Consolidated Insulation, Inc., Cosco Fire Protection, Inc., Cosco Sprinkler, Critchfield Mechanical, Inc., C & R Plastering, Inc., Csk Auto, Inc., Cupertino Electric, Inc., Delucchi Sheet Metal Works, Dilland Sederberg Plumbing, Does 1-8500, Domco Products Texas Inc., Domco Products Texas, L.P., Donovan Construction, Dorn Refrigeration, Dorn Refrigeration And Air Conditioning, Dpr Construction, Duro Dyne Corporation, D.W. Nicholson Corporation, D. Zelinsky & Sons, Inc., Emil J. Weber Electric Co., Erwin Mechanical Inc., Ex- Fme, Inc. (Fka Fischbach And Moore Electric,, Fairmont Hotel Company, Fluor Corporation, Foley Electric Co., Foley Electric, Inc., Fuller Floors, General Mills, Inc., Giampolini & Co., Graybar Electric Company, Inc., Hanson Permanente Cement, Inc. Formerly Known As, Harold Beasley Plumbing And Heating, Inc., Harry Lee Plumbing & Heating, H & C Investment Associates, Inc., Henry C. Beck Company, Imperial Plastering & Drywall, Insulation Specialties, Inc., James A. Nelson Co., Inc., Johnson Controls, Inc., Jones Plastering Company, Joseph Bruno Sheet Metal Co., Inc., J.T. Thorpe & Son, Inc., J.W. Mcclenahan Company, J.W. Mcclenahan Company, Inc., Kentile Floors, Inc., Laub Sheet Metal Works, Lone Star Industries, Inc., Mack Construction Co., Magee, Robert, Malm Metal Products, Inc., Marine Engineering And Supply Company, Marshco Auto Parts, Inc., Mattock Construction Company, Mcclure Electric, Inc., Metropolitan Life Insurance Company, Michael Brothers, Midstate Mechanical, Inc., Mitchell Bros. Truck Lines, Inc., Monsanto Company, Sued As "Pharmacia Corporation", Oakfabco, Inc., Ortho-Craft, Pacific Fireproofing, Pacific Mechanical Corporation, Parker Insulation Contracting & Supply Co. Inc., Perini Corporation, Pharmacia Corporation, Which Will Do Business In, Pribuss Engineering, Pribuss Engineering, Inc., Raymond Interior Systems-North, Red Top Electric Co. Emeryville, Inc., Robert Magee, Rollie R. French, Inc., Rollins Construction, Rountree Plumbing & Heating Inc., Scott Co. Of California, S F L, Inc., S.J. Amoroso Construction Co., Inc., Slakey Brothers, Inc., Sugden Engineering Co., Swinerton Builders, Temper Insulation, Temporary Plant Cleaners, Inc., Texaco, Inc., The Goodyear Tire & Rubber Company, The W.W. Henry Company, Tuttle And Bailey Corp, Van Mulder Sheetmetal, Van-Mulder Sheet Metal, Inc., Walnut Creek Sheet Metal, Furnace & Air, W.C. Thomason, W.C. Thompson, Webcor Builders, Inc., Westburne Supply, Inc., Willard Electric, Wright Schuchart Harbor, Wright Schuchart Harbor Company, Ross, Jean, Ross, Robert, for civil in the District Court of San Francisco County.
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2 3 4 5 6 7 8 9 10 Bs i I S 7 12 g s 13 ‘oO 2 14 oe E< 16 ;O 7 n 18 19 20 21 22 23 24 25 26 27 28 339742.1. 1210,40020 MARK A. LOVE (SBN 162028) mlove@selmanlaw.com Hee@selon ot LEE (SBN 187694) ELECTRONICALLY rlee@selmanlaw.com SELMAN BREITMAN LLP FILED 33 New Montgomery, Sixth Floor i coins bean mamceeo ft San Francisco, CA 94105-4537 05/12/2016 Telephone: 415.979.0400 Clerk of the Court Facsimile: 415.979.2099 BY:ROMY RISK Deputy Clerk Attorneys for Specially Appearing Intervenor FIREMAN'S FUND INSURANCE COMPANY, the insurer of Defendant ASSOCIATED INSULATION OF CALIFORNIA, INC., a suspended Corporation SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO- UNLIMITED JURISDICTION ROBERT ROSS and JEAN ROSS, Case No. CGC-10-275731 Plaintiff, EX PARTE APPLICATION FOR ORDER v. GRANTING LEAVE FOR INTERVENOR FIREMAN'S FUND INSURANCE C.C. MOORE & CO. ENGINEERS, et al., COMPANY TO SPECIALLY APPEAR IN ACTION AND ORDER SETTING ASIDE Defendants. DEFAULT ENTERED AGAINST ASSOCIATED INSULATION OF CALIFORNIA, INC, Date: May 12, 2016 Time: 11:00 a.m. Judge: Hon, Garrett L. Wong Dept.: 503 I. STATEMENT OF FACTS ASSOCIATED INSULATION OF CALIFORNIA, INC. ("ASSOCIATED INSULATION") is currently a suspended corporation by the Secretary of State. The California Franchise Tax Board does not even have any record of ASSOCIATED INSULATION. As such, ASSOCIATED INSULATION lacks the capacity to defend itself in any asbestos lawsuit filed against it, pursuant to Revenue & Taxation Code §23301. Fireman's Fund Insurance Company ("INTERVENOR"), pursuant to the terms of its 1 EX PARTE APPLICATION FOR ORDER GRANTING LEAVE FOR INTERVENOR FIREMAN'S FUND INSURANCE COMPANY TO SPECIALLY APPEAR IN ACTION AND ORDER SETTING ASIDE DEFAULT ENTERED AGAINST ASSOCIATED INSULATION OF CALIFORNIA, INC,2 3 4 5 6 7 8 9 10 a i 4 12 a: E- 13 me 9 g 14 3 mz 15 gi < 16 & oO 17 n 18 19 20 21 22 23 24 25 26 27 28 339742.1 1210.40020 respective insurance policy(ies) and solely in its capacity as an insurer of ASSOCIATED INSULATION, now seeks leave of court to specially appear as an intervenor, and to file an application to set aside the defaults against ASSOCIATED INSULATION. ASSOCIATED INSULATION never appeared in the action or participated in the lawsuit. Likewise INTERVENOR has not appeared in this action or given the opportunity to participate in the lawsuit. INTERVENOR will suffer severe prejudice and be irreparably harmed if it is deprived of the right to intervene in this case as the insurer of ASSOCIATED INSULATION. Il. GOOD CAUSE EXISTS TO BRING THE REQUESTED RELIEF ON AN EX PARTE BASIS Pursuant to California Rules of Court, Rule 3.1201, a request for ex parte relief must be in writing and accompanied by the following documents: (1) An application containing the case caption and stating the relief requested; (2) A declaration in support of the application making the factual showing required under rule 3.1202(c); (3) A declaration based on personal knowledge of the notice given under rule 3.1204; (4) A memorandum; and (5) A proposed order. Rule of Court 3.1202(c) provides that a court may grant relief of an ex parte application upon a factual showing of "personal knowledge of irreparable harm, immediate danger, or any other statutory bases for granting ex parte relief." Good cause exists for the Court to grant the relief requested in this application on an ex parte basis because plaintiffs obtained defaults against ASSOCIATED INSULATION on September 9, 2011 and March 20, 2012. First, it is unclear to INTERVENOR why plaintiffs are seeking to reduce default to judgment beyond 45 days from the time default was taken. California Rule of Court 3.110(h) states that "[w]hen a default is entered, the party who requested the entry of default must obtain a default judgment against the defaulting party within 45 days after the default was entered, unless the court has granted an extension of time." California Rule of Court 3.110(h). Second, plaintiffs fail to comply with the requirement that plaintiffs must inform known 2 EX PARTE APPLICATION FOR ORDER GRANTING LEAVE FOR INTERVENOR FIREMAN'S FUND INSURANCE COMPANY TO SPECIALLY APPEAR IN ACTION AND ORDER SETTING ASIDE DEFAULT ENTERED AGAINST ASSOCIATED INSULATION OF CALIFORNIA, INC.co NO Selman Breitman Lip ATTORNEYS AT LAW 339742,1 1210.40020 counsel for INTERVENOR of any application for entry of default judgement. Plaintiffs have failed to so. Since March 9, 2016, the date INTERVENOR filed a number of ex parte applications to intervene on behalf of ASSOCIATED INSULATION, counsel for plaintiffs have had notice of the identify of INTERVENOR's retained counsel for asbestos related matters. Yet it appears on March 22, 2016, plaintiffs filed an application for entry of default judgment. That application is set to be heard on May 24, 2016. Plaintiffs never informed INTERVENOR or its counsel of the application. Instead, INTERVENOR learned about plaintiffs' application through INTERVENOR's ongoing investigations regarding the identification of cases in which ASSOCIATED INSULATION has been sued. Third, the Court has inherent, equitable power to set aside defaults on the ground of mistake, This Ex Parte Application is based on the Declaration of Richard M. Lee, the Memorandum of Points and Authorities served and filed with this Application, and on the papers and records on file in this matter, and on such oral and documentary evidence as may be presented at the hearing on the application. ff, DATED: 9 /‘* / & SELMAN BREITMAN LLP Ete He ee Ce Heci MARK A. LOVE RICHARD M. LEE Attorneys for Specially Appearing Intervenor FIREMAN'S FUND INSURANCE COMPANY, the insurer of Defendant ASSOCIATED INSULATION OF CALIFORNIA, INC., a suspended Corporation By: 3 EX PARTE APPLICATION FOR ORDER GRANTING LEAVE FOR INTERVENOR FIREMAN'S FUND INSURANCE COMPANY TO SPECIALLY APPEAR IN ACTION AND ORDER SETTING ASIDE DEFAULT ENTERED AGAINST ASSOCIATED INSULATION OF CALIFORNIA, INC.PROOF OF SERVICE BY ELECTRONIC TRANSMISSION Robert Ross and Jean Ross v. C.C. Moore & Co. Engineers, et al. San Francisco Superior Court Case No, CGC-10-275731 Defendant: Intervenor FIREMAN'S FUND INSURANCE COMPANY, the insurer of Defendant ASSOCIATED INSULATION OF CALIFORNIA, INC., a suspended Corporation I am employed in the County of San Francisco, State of California. I am over the age of 18 years and not a party to the within action; my business address is 33 New Montgomery, Sixth Floor, San Francisco, California 94105. On May 11, 2016, | electronically served the document via File & ServeXpress described as: EX PARTE APPLICATION FOR ORDER GRANTING LEAVE FOR INTERVENOR FIREMAN'S FUND INSURANCE COMPANY TO SPECIFICALLY APPEAR IN ACTION AND ORDER SETTING ASIDE DEFAULT ENTERED AGAINST ASSOCIATED INSULATION OF CALIFORNIA, INC. on the recipients designated on the Transaction Receipt located on the File & ServeXpress 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 11, 2016, at San Francisco, California. ~féresp J. Sloop