On December 17, 2010 a Motion-Secondary 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 OFFICES IMAI, TADLOCK, KEENEY & CORDERY, LLP ‘Surre 1300 190 BUSH STREET SAN FRANCISCO, CA 94104 (415) 675-7000 Theodore T. Cordery, Esq. (Bar No. 114730) Tina Yim, Esq. (Bar No. 232597) IMAI, TADLOCK, KEENEY & CORDERY, LLP 100 BUSH STREET, SUITE 1300 ELECTRONICALLY SAN FRANCISCO, CA 94104 FILED Telephone: (415) 675-7000 Superior Court of California, Facsimile: (415) 675-7008 County of San Francisco MAR 23 2012 Clerk of the Court BY: VANESSA WU Deputy Clerk Attomeys for Defendant WEBCOR BUILDERS, INC. IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO UNLIMITED JURISDICTION ROBERT ROSS and JEAN ROSS, CASE NO.: CGC-10-275731 Plaintiffs, DEFENDANT WEBCOR BUILDERS, Vv. INC.’S OPPOSITION TO PLAINTIFFS' MOTION TO CONSOLIDATE ACTIONS AND CONTINUE TRIAL DATE C.C. MOORE & CO. ENGINEEERS, et al., Complaint Filed: December 17, 2010 Trial Date: Not yet set Defendants. Date: April 2, 2012 Time: 9:30 a.m. Dept: 503 Judge: Hon. Teri L. Jackson I. INTRODUCTION Defendant Webcor Builders, Inc. (“Webcor”) opposes Plaintiffs’ Motion to consolidate actions. In their Motion, Plaintiffs Robert Ross and Jean Ross seek to consolidate two separate action, both of which pertain to asbestos-related diseases allegedly sustained by Mr. Ross. The Motion is based on Code of Civil Procedure Section 1028(a), which permits the court to order a joint trial of actions which involve common questions of law and fact.. The two actions, one seeking damages for alleged asbestosis and pleural disease sustained by Mr. Ross as a result of I. DEFENDANT WEBCOR BUILDERS, INC.’S OPPOSITION TO PLAINTIFFS' MOTION TO CONSOLIDATE ACTIONS AND CONTINUE TRIAL DATE, LLP Y & CORDERY, LAW OFFICES s too SAN FRANCISCO, Ca 94104 IMAI, TADLOCK, KE! (415) 675-7000 So Oe WD HW BF BN NY NON NY NO KN RNR Ra ea a eee eo YR AW BF YW YN SF SD eC mem a DW BF BW NY SF OS occupational exposure to asbestos (Robert Ross v. Asbestos Defendants, San Francisco Superior Court Case No. CGC-07-274009 (hereafter “Ross I”), and the second relating to colon cancer which Plaintiffs attribute to his asbestos exposure (Robert Ross v. Asbestos Defendants, San Francisco Superior Court Case No. CGC-07-275731 (hereafter “Ross II”) are based on the same exposure allegations. As a result of the procedural history of both cases, however, the issues raised in the two actions are not common, and would lead to untenable jury confusion and prejudice to defendants named in both cases. Plaintiffs filed Ross I on March 5, 2007, and alleged that Mr. Ross sustained asbestos- related pleural plaque and asbestosis as a result of his exposure to asbestosis. On December 17, 2010, more than three years after filing Ross I, Plaintiffs Robert and Jean Ross filed Ross IT alleging that Mr. Ross sustained colon cancer, asbestosis and asbestos-related pleural disease. Plaintiffs apparently filed the new action, rather then amend their complaint in Ross I, in order to allow them to join new defendants not previously named in Ross I, including Webcor, without risking dismissal pursuant to Code of Civil Procedure Sections 583.210 and 583.250. By December 2010, service of these new defendants as “Doe” defendants named in Ross I would have been untimely and subject to involuntary dismissal under Sections 583.210 and 583.250. (Lesko v. Superior Court (1982) 127 Cal. App.3d476, 484-485.) In recognition of this fact, plaintiffs voluntarily dismissed their claims for asbestosis and asbestos-related pleural plaques against the new defendants, including Webcor. (See Yim Decl., Exhibit C.) After having separated the respiratory disease and colon cancer claims in order to avoid dismissal under Sections-583.:210 and 583.250, Plaintiffs now seek to have both the tespiratory disease and colon cancer claims tried simultaneously pursuant to Code of Civil Procedure Section 1028(a). II. LEGAL ARGUMENT A. CONTRARY TO PLAINTIFFS’ ASSERTION, THERE ARE DISTINCT ISSUES OF LAW WHICH DO NOT WARRANT CONSOLIDATION. Plaintiffs contend that Ross I and Ross I involve common questions of law and fact. However, Plaintiffs’ splitting of their claim into two actions to avoid dismissal of new defendants -2- DEFENDANT WEBCOR BUILDERS, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION TO. CONSOLIDATE ACTIONS AND CONTINUE TRIAL DATE‘LAW OFFICES , LLP ‘SUEDE (309 KEENEY & CORDERY, IMAI, TADLOCK, (415) 675-7000 named in Ross II, have in fact, eliminated the commonality that might otherwise have existed between the factual and legal issues alleged in both cases. As the cases now stand, Webcor and ithe defendants newly served in Ross IL are potentially liable only for Plaintiff's injury of colon cancer, while those defendants appearing only in Ross I. Since the asbestos-related lung disease claims cannot be raised against Webcor and the other new defendants named in Ross II, evidence of Plaintiffs asbestos-related plaques/asbestosis is irrelevant. Specifically, the issue of medical causation is substantially different in asbestos- related pleural plaques/asbestosis versus colon cancer. While there is no dispute as to whether asbestos exposure.can cause asbestosis, Webcor anticipates arguing that asbestos exposure does not cause colon cancer. Since the diseases involve different parts of the human body (lung versus colon), Webcor anticipate there will be different medical evidence presented in support of parties’ claims. Plaintiffs’ argument that consolidation would avoid duplication of time and effort should also not be considered persuasive. To the contrary, duplication is inevitable since there are many defendants, including Webcor, against whom Plaintiffs cannot. pursue their claim for asbestos- related pleural plaques and asbestosis. However, Webcor should not be forced into consolidation with defendants for whom Plaintiffs have timely raised an asbestos-related lung disease claim, because Plaintiffs chose to file a second lawsuit rather than timely add Webcor to the first lawsuit and then amend their Complaint to address the colon cancer injury. B. CONSOLIDATION OF BOTH CASES WILL RESULT. IN JUROR CONFUSION AND A VERY GOOD LIKELIHOOD THAT WEBCOR WILL BE ASSESSED LIABILITY FOR TIME-BARRED CLAIMS. Consolidation will lead to jury confusion and be prejudicial to the Ross II defendants. By consolidating the cases for Trial, jurors will be forced to categorize defendants into one of two groups: 1) injuries from asbestos pleural plaques/asbestosis and colon cancer; and 2) injuries from colon cancer. While the factual evidence of exposure may be similar among the groups of defendants, the jurors will be forced to apply different arguments about causation of the diseases arid make different assessment of damages based on the different groups of defendants. (State 3. DEFENDANT WEBCOR BUILDERS, INC.’S OPPOSITION TO PLAINTIFFS' MOTION TO CONSOLIDATE.ACTIONS AND CONTINUE TRIAL DATELAW OFFICRS » LLP KEENEY & CORDERY., IMAI, TADLOCK, SUITE 1300 100 BUSH STREET SAN FRANCISCO,.CA 94104 (415) 675-7000 Farm Automobile Ins. Co. v. Superior Ct., supra, 47 Cal: 2d at 430-31.) For example, Plaintiffs are expected to present evidence that asbestos-related pleural plaques and asbestosis are incurable and progressive diseases. Colon cancer however, is a curable disease. Since colon cancer is a curable disease, this will impact a jury’s assessment of damages. By consolidating the cases, jurors will undoubtedly hear evidence about asbestos-related lung diseases, and potentially take it into account against Webcor in their evaluation of his colon cancer ijuries. Jurors may also be confused when attempting to categorize the factual evidence against various defendants for the different diseases. Thus, it is highly possible that a juror will find Webcor to be improperly liable for the time barred claims. As the Court stated in State Farm Automobile Ins. v. Superior Ct.: Substantially the same evidence might be involved in the adjudication of these issues, but petitioner would be forced into contradictory arguments based, upon conflicting testimony, or at least upon conflicting inferences arising from the evidence, with regard to these distinguishable relationships. Moreover, the consolidation would unquestionably confuse the jury in determining under differing tests set out in the instructions the consequences of any particular factual situation which the jury might find to exist. (State Farm Automobile Ins. Co. v. Superior Ct., supra, 47 Cal. 2d at 431.) As in State Farm, the alleged facts of asbestos exposure may be common between the two Ross cases. However, this similarity will be what causes confusion, raising the possibility that Webcor will be liable for asbestos-related pleural plaques and asbestosis, denying the dismissal of those claims it received from Plaintiffs. TI. CONCLUSION Plaintiffs should-not reap the benefits of consolidating Ross I and-Ross II because they failed to timely raise asbestos-related pleural plaques/asbestosis/lung disease claims against Webcor. The effect of consolidating legally dissimilar cases will cause juror confusion, and Ttt fit ‘it 4. DEFENDANT WEBCOR BUILDERS, INC.’S OPPOSITION TO PLAINTIFFS' MOTION TO CONSOLIDATE ACTIONS AND CONTINUE TRIAL DATEy LLP SUITE 1300, igo BUSH STREET SAN FRANCISCO, CA 94104 KEENEY & CORDERY, LAW OFFICES IMAI, TADLOCK, (415) 675-7060 severely prejudice Webcor. Based on the foregoing, Defendant respectfully requests this Court to deny Plaintiffs’ Motion to Consolidate these Actions. Dated: March 23, 2012 IMAI, TADLOCK, KEENEY & CORDERY, LLP By: /S/Tina Yim Tina Yim Attorneys for Defendant WEBCOR BUILDERS; INC. 5- DEFENDANT WEBCOR BUILDERS, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION TO CONSOLIDATE ACTIONS AND CONTINUE TRIAL DATEay 4 a - % a a & o GQ 3 LAW OFFICKS KEEN su 100 Bus IMAI, TADLOCK, SAN FRANCISCO, CA 94104 (415) 675-7000 n wv sb 14 a Dw PROOF OF SERVICE I, the undersigned, declare: I am a resident of the State of California and over the age of cighteen years, and not a party to the within action; my business address is 100 Bush Street, Suite 1300, San Francisco, CA 94104. On the date of execution below, I served the within documents: DEFENDANT WEBCOR BUILDERS, INC.’S OPPOSITION TO PLAINTIFFS" MOTION TO CONSOLIDATE ACTIONS AND CONTINUE TRIAL DATE by transmitting via facsimile the document(s) listed above to the fax number(s) set forth below on this date before 5:00 p.m. by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at San Francisco, California addressed as set forth below. by personally delivering the document(s) listed above to the person(s) at the address(es) set forth below. >| On the date of execution below, I electronically served the document via LexisNexis File & Serve on the recipients designated on the Transaction Receipt located on the LexisNexis File & Serve Web site. Brayton Purcell, LLP 222 Rush Landing Road Novato, CA 94945-2469 Iam readily familiar with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on March 23, 2012, at San Francisco, California. a nduntha Samantha 1 Ross, Robert and Jean v. C.C. Moore & Co. Engineers, (WB). SAN FRANCISCO SUPERIOR COURT NO. CGC-10-275731 -6- DEFENDANT WEBCOR BUILDERS, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION TO CONSOLIDATE ACTIONS AND CONTINUE TRIAL DATE