On December 17, 2010 a Hearing 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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Law Cooley M John T. Hugo, Esq. (State Bar No. 269555) Howard P. Skebe, Esq. (State Bar No. 191407) Lindsay Weiss, Esq. (State Bar No. 268076) COOLEY MANION JONES LLP 201 Spear Street, 18th Floor San Francisco, CA 94105 Tek: (415) 512-4381 Fax: (415) 512-6791 hskebe@cemjlaw.com lweiss@cmilaw.com Attorneys for Defendant TEMPORARY PLANT CLEANERS, INC. ELECTRONICALLY FILED Superior Court of California, County of San Francisco JUN 12 2012 Clerk of the Court BY: WILLIAM TRUPEK Deputy Clerk IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO ROBERT ROSS and JEAN ROSS, Plaintiffs, vs. C.C. MOORE & CO ENGINEERS; et al.; and DOES 1-8500. Defendants. 1. INTRODUCTION Case No. CGC-10-275731 DEFENDANT TEMPORARY PLANT CLEANERS, INC.°S MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ THIRD AMENDED COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM — ASBESTOS Hearing Date: July 10, 2012 Time: 9:30 a.m. Dept.: 503 Judge: Hon. Teri L. Jackson Complaint Filed: December 17, 2010 First Amended Complaint: March 14, 2011 Second Amended Complaint: May 16, 2011 Third Amended Complaint: May 11, 2012 Trial Date: TBD With leave of Court, Plaintiffs Robert Ross and Jean Ross (“Plaintiffs”) filed their Third Amended Complaint for Personal Injury and Loss of Consortium - Asbestos (“Third Amended Complaint”) on May 11, 2012, alleging various causes of action against a host of defendants. Of -|- DEFENDANT TEMPORARY PLANT CLEANERS, INC.’S MOTION TO STRIKE PORTIONS OF PLAINTIFFS” THIRD AMENDED COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM — ASBESTOSay a z c & Zz Sz BS ee dz So paramount importance, Plaintiffs’ Third Amended Complaint contains an allegation which is not drawn in conformity with the Court’s May 8, 2012 Order (“Order”). In direct contradiction to the Court’s Order, Plaintiffs’ Third Amended Complaint includes a claim related to Mr. Ross’ alleged asbestosis diagnosis. As the Court’s Order expressly denied Plaintiffs leave to include this allegation in their amended pleading, the Court should strike all references to Mr. Ross’ alleged asbestosis diagnosis from the Third Amended Complaint. I. STATEMENT OF FACTS On May 8, 2012, Plaintiffs sought leave to file their Third Amended Complaint, requesting the authority to add seven defendants, and a claim related to Mr. Ross’ alleged asbestosis diagnosis, to the instant matter. Upon opposition of several defendants, the Court granted Plaintiffs’ request in part, and denied Plaintiffs’ request in part. Specifically, the Court expressly denied Plaintiffs leave to include the alleged asbestosis diagnosis in their Third Amended Complaint: “IT IS ORDERED that the motion to file a Third Amended Complaint is granted in part and denied in part. It is denied as to the proposed claim based on the May 2009 asbestosis diagnosis as Mr. Ross had a prior action based on that claim.” Plaintiffs served a “Notice of Entry of Order Granting in Part and Denying in Part Leave to File Third Amended Complaint” on May 10, 2012, appropriately attaching the Court's May 8, 2012 Order. Surprisingly, Plaintiffs’ Third Amended Complaint -- filed a mere three days later on May 11, 2012 -- was not drawn in conformity with this Court’s Order. As with all Complaints filed by the Brayton Purcell law firm, the Third Amended Complaint directs defendants to “Exhibit A” attached to the Complaint for information relating to “Plaintiffs asbestos-related injury, date of diagnosis, employment status, and history of exposure to asbestos.” (See Plaintiffs’ Third Amended Complaint at 3:1-2). With stark disregard to this Court’s Order, “Exhibit A” states the following: “Plaintiff was diagnosed with colon cancer on or about October 2010, and with asbestosis on or about May 2009.” (/d. at 46:19-20, emphasis added). Plaintiffs’ Third Amended Complaint is not drawn in conformity with the Court’s Order, which expressly denies Plaintiffs leave to include the asbestosis claim, and as such, this Court should strike all references to Mr. Ross’ alleged asbestosis diagnosis from the Third Amended ~2- DEFENDANT TEMPORARY PLANT CLEANERS, INC.’S MOTION TO STRIKE PORTIONS OF PLAINTIFFS? THIRD AMENDED COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM — ASBESTOSay a z c & Zz Sz BS ee dz So Complaint. TH. LEGAL ARGUMENT A. Standard for a Motion to Strike California Code of Civil Procedure (“CCP”) Section 435(b)(1) allows any party the right to file a Motion to Strike within 30 days after service of the Complaint: “A motion to strike any pleading must be filed ‘within the time allowed to respond to a pleading’—e.g., 30 days after service of the complaint or cross-complaint unless extended by court order or stipulation.” Plaintiffs filed their Third Amended Complaint on May 11, 2012. TPC’s responsive pleading in this matter is due on June 12, 2012. As such, this motion is timely. Pursuant to CCP 436(b), “[t]he Court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: Strike out all or any part of any pleading not drawn or filed in conformity with. . .an order of the court.” (emphasis added). Additionally, CCP § 437(a) provides that “[t]he grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” B. “Exhibit A” is a Part of Plaintiffs’ Third Amended Complaint for Which This Court May Strike As stated above, Plaintiffs’ Third Amended Complaint directs defendants to “Exhibit A” for information relating to “Plaintiff's asbestos-related injury, date of diagnosis, employment status, and history of exposure to asbestos.” (See Plaintiffs’ Third Amended Complaint at 3:1-2). This Court has authority to strike out all or any part of any pleading not drawn or filed in conformity with an order of the court. The Brayton Purcell law firm includes all of the case- specific information in Exhibit A, attached to each of their Complaints. In fact, without Exhibit A, the Brayton Purcell Complaints would contain no facts regarding the plaintiffs whatsoever. Here, “Exhibit A” states the following: “Plaintiff was diagnosed with colon cancer on or about October 2010, and with asbestosis on or about May 2009.” (/d. at 46:19-20, emphasis added), In asbestos cases, a plaintiff is required to “allege that he suffers from a specific illness. . -” Bockrath v. Aldrich Chemical Co., Inc. (1999) 21 Cal.4th 71, 80. “. ..a complaint in a -3- DEFENDANT TEMPORARY PLANT CLEANERS, INC.’S MOTION TO STRIKE PORTIONS OF PLAINTIFFS? THIRD AMENDED COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM — ASBESTOSay a z c & Zz Sz BS ee dz So personal injury case is a ‘statement of the facts constituting the cause of action in ordinary and concise language.”” Jd. In cases, such as the one at hand, where plaintiffs plead a cause of action for negligence, the complaint must include facts supporting the causation element. As such, without facts illustrating what alleged disease is at issue, a complaint would fail for lack of alleging causation. In order to be sufficient, a complaint must contain a statement of facts which, without the aid of other conjectured facts not stated, shows a complete cause of action. See Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6: Ludgate Insurance Company y. Lockheed Martin Corporation (2000) 82 Cal.App.4th 592, 608 (Plaintiff is required to set forth essential facts of his case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action). As the purpose of a Complaint is to put defendants on notice of the claims being made against it, Exhibit A is the portion of Plaintiffs’ Third Amended Complaint that purports to do so. Without this Exhibit, Defendants would have no information relating to Mr. Ross whatsoever. Defendants would not have any information relating to Mr. Ross’ work history, history of exposure to asbestos, and most importantly, the disease(s) Plaintiffs allege that Mr. Ross suffers from. Thus, this Court has authority to strike portions of “Exhibit A”, as it is a portion of Plaintiffs’ Third Amended Complaint. C. The Court’s May 8, 2012 Order Expressly Denies Plaintiffs Leave to Include the May 2009 Asbestosis Claim in the Third Amended Complaint On May 8, 2012, Plaintiffs sought leave to file their Third Amended Complaint, requesting the authority to add seven defendants, and a claim related to Mr. Ross’ alleged asbestosis diagnosis, to the instant matter. Upon opposition of several defendants, the Court granted Plaintiffs’ request in part, and denied Plaintiffs’ request in part. Specifically, the Court expressly denied Plaintiffs leave to include the asbestosis diagnosis in their Third Amended Complaint: “IT IS ORDERED that the motion to file a Third Amended Complaint is granted in part and denied in part. It is denied as to the proposed claim based on the May 2009 asbestosis diagnosis as Mr. Ross had a prior action based on that claim.” Plaintiffs served a “Notice of Entry of Order ~4- DEFENDANT TEMPORARY PLANT CLEANERS, INC.’S MOTION TO STRIKE PORTIONS OF PLAINTIFFS? THIRD AMENDED COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM — ASBESTOSay a z c & Zz Sz BS ee dz So Granting in Part and Denying in Part Leave to File Third Amended Complaint” on May 10, 2012, attaching the Court’s May 8, 2012 Order. Plaintiffs’ Third Amended Complaint, filed May 11, 2012, expressly violates this Court’s Order, and includes a claim relating to Mr. Ross’ alleged asbestosis diagnosis. The Third Amended Complaint states the following: “Plaintiff was diagnosed with colon cancer on or about October 2010, and with asbestosis on or about May 2009.” (See Plaintiffs’ Third Amended Complaint at 46:19-20, emphasis added). Plaintiffs’ Third Amended Complaint is not drawn. in conformity with the Court’s May 8, 2012 Order, and pursuant to CCP 436(b), this Court should strike all references to Mr. Ross’ asbestosis diagnosis from the Third Amended Complaint. Wi. CONCLUSION Plaintiffs’ Third Amended Complaint is not in drawn in conformity with this Court’s Order of May 8, 2012. The Court Order expressly denied Plaintiffs leave to include an allegation related to Mr. Ross’ alleged asbestosis diagnosis. As such, this Court should grant the instant motion, and should strike all references to Mr. Ross’ asbestosis diagnosis from the Third Amended Complaint. Respectfully Submitted, Dated: June 12, 2012 COOLEY MANION JONES LLP By: /s/ Lindsay Weiss Lindsay Weiss, Esq. Attorneys for Defendant TEMPORARY PLANT CLEANERS, INC. -5- DEFENDANT TEMPORARY PLANT CLEANERS, INC.’S MOTION TO STRIKE PORTIONS OF PLAINTIFFS? THIRD AMENDED COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM — ASBESTOS