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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BARBARA R. ADAMS, SBN 99231 GEORGES A. HADDAD, SBN 241785 GINA A. HARAN, SBN 225586 ELECTRONICALLY ADAMS | NYE| BECHT LLP FILED 222 Kearny Street, Seventh Floor Superior Court of California, San Francisco, California 94108-4521 County of San Francisco Telephone: (415) 982-8955 MAR 23 2012 Facsimile: (415) 982-2042 Clerk of the Court Attomeys for Defendant BY VANESSA VN Deputy Clerk PRIBUSS ENGINEERING, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA CITY AND COUNTY OF SAN FRANCISCO ROBERT ROSS and JEAN ROSS, ASBESTOS No. CGC-10-275731 Plaintiffs, DEFENDANT PRIBUSS vs. ENGINEERING, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION TO C,C. MOORE & CO. ENGINEERS; Defendants | CONSOLIDATE as Reflected on Exhibit 1 attached to the Summary Complaint herein; and DOES 1-8500, Date: April 2, 2012 Time: 9:30 a.m. Defendants. Dept.: 503 Judge: Hon. Teri L. Jackson 2nd Amended Complaint Filed: 5/16/11 Plaintiffs, Robert and Jean Ross, moved this court for an order consolidating their two lawsuits which may be based on similar factual instances, but are worlds apart under the guidance of California Code of Civil Procedure section 1048(a), and do not warrant consolidation. For these reasons and due to a procedural defect in service of Plaintiff's moving papers,- Plaintiffs’ motion was only served on defendants in Mr. Ross’ 2007 lawsuit, of which Pribuss Engineering, Inc, (“Pribuss”), has never been aparty. Pribuss respectfully requests this Court deny Plaintiffs’ motion in its entirety. 1. FACTUAL BACKGROUND A. The 2007 Ross Complaint for Asbestos-Related Personal Injuries On March 5, 2007, Mr. Robert Ross filed a complaint (hereafter “Ross I”) for his asbestos- related personal injury, naming various defendants, including 8,500 Does. (Sec, Declaration of Gina DEFENDANT PRIBUSS ENGINEERING. INC."S OPPOSITION TO PLAINTIFPS* MOTION TO CONSOLIDATEA. Haran (“Decl. GAH”) attached as Exhibit A.) Pribuss was not named as a defendant at any time in Ross 1. (See Exhibit B to Decl. GAH) The Ross 1 Complaint, alleges that Mr. Ross’ “exposure to asbestos, asbestos-containing products, and other toxic carcinogenic products, caused severe and permanent injury to Mr. Ross, including but not limited 1o breathing difficulties, asbestosis, and/or other lung damage, and increased risk of developing mesothelioma, lung cancer and various other cancers.” Furthermore, Mr. Ross alleges that he was diagnosed with asbestos-related pleural disease on or about May 2006. (Exhibit A to Decl. GAH at p. 27:12-16) Jean Ross was not a party and is still nota party to the Ross | Complaint. B. The 2010 Ross Complaint for Asbestos-Related Personal Injuries On December 17, 2010, which was over three-and-a-half years after the filing of the 2007 complaint, Mr. Ross filed a second asbestos-related personal injury action (hereafter “Ross, I], attached as Exhibit C to Decl. GAII) Pribuss was named as a defendant in Ross IL. (Exhibit C to Deel. GAH) In the Ross I] complaint , Mr. Ross alleged that his “exposure to asbestos and asbestos- containing products caused severe and permanent injury to Mr. Ross, including but not limited to breathing difficulties and/or other lung damage. Plaintiff, Mr. Ross was diagnosed with colon cancer on or about October 2010, and with asbestosis and asbestos-related pleural disease on or about May 2009,” (Exhibit C to Decl. GAH, at p. 41:3-6). C. Plaintiffs Voluntarily Dismissed the Asbestosis and Asbestos-Related Pleural Disease Claim Alleged in Ross IT Against Pribuss After moving the Court for an order to dismiss the claim for asbestosis and asbestos-related pleural disease as untimely, Plaintiffs voluntarily dismissed those claims as they relate to Pribuss in the Ross Il action. The result of the dismissal of those two claims leaves colon cancer as the sole disease at issue in Ross I] against Pribuss. D. Plaintiffs Failed to Serve Defendants in Ross IJ with their Motion to Consolidate On March 12, 2012, Plaintiffs sent notice of their intent to move ex parte for an Order consolidating Ross I and Ross II or an Order Shortening Time to bring a Motion to Consolidate.(Exhibit D to Decl. GAH , Plaintiffs’ ex parte notice). At the March 13 ex parte hearing an order was issued directing Plaintiffs to file and serve their moving papers by 4:00 p.m. that day. (Exhibit E to Decl, GAH, Order Granting Plaintiffs’ ex parte application). A review of Lexis Nexus indicates that Plaintiff timely filed and served its moving papers in the Ross | case, but only filed the moving papers in Ross II and never served the papers on the Ross I] defendants. (Exhibit F to the Dec]. GAH — Lexus printout) Defendants in Ross II have not been served with the moving papers associated with this motion. Il. ANALYSIS A. Plaintiffs Motion is Procedurally Defective Because it was Not Served on All Defendants As discussed above, Plaintiffs timely filed and served the moving papers on defendants in Ross I of which Pribuss is not a party. A review of Lexis Nexus shows that Plaintiff failed to serve defendants in Ross II. Failure to give proper notice of this motion prejudices those parties in Ross TI who are equally concerned with the outcome of a motion to consolidate. This failure alone is sufficient for this court to deny Plaintiffs’ motion. B. Consolidation Goals Not Achieved Through the Consolidation of Ross I and Ross It Consolidation is a procedure which unites separate lawsuits for trial, and is applicable where the cases involve common questions of law or fact are pending in the same court, and a consolidated trial would be judicially economical. (Code of Civil Procedure, Section 1048(a); see also Sanchez v. Superior Court (1988) 203 Cal.App.3d 1391, 1396; Askew v. Askew (1994) 22 Cal.App.4th 942, 964 la motion to consolidate is usually predicated on a showing that two or more actions already involve a common question of law or fact.]). California Code of Civil Procedure section 1048 (a) states, “When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions, it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” (Cal. Civ. Code § 1048 (a)). The nature of the two cases the Plaintiffs seek to consolidate do not warrant consolidation for several reasons. No time will be saved by consolidating theses two cases, the 3 EREMIN ART RDIDTIEE ERICIMULBINGE IX FG ADDARITION TA DE ATITIDER MATION TA CONCAT IMATEpotential for juror confusion, disparate results, and prejudice to defendants all establish that consolidation of these matters is neither sensible nor fair. Plaintiffs’ seek a consolidation of Ross | and Ross II which essentially “merges” the two cases together on the eve of the Ross | trial date in order to obtain an end result of one verdict and one judgment. (Hamilton v. Asbestos Corp., Lid. (2000) 22 Cal.4th 1127, 1147-1148). Although Mr. Ross’ work history in the two matters maybe the same, that is the only common fact between the two matters. Pribuss and the other defendants will be prejudiced by consolidation of these actions. There is no doubt that consolidating the actions will make the trial too confusing, too long and too complex for the jury. Consolidating the defendants in the two Ross matters will now put the parties from the two actions into the same case for purposes for remaining discovery for trial (such as expert discovery). Plaintiffs claims in the Ross ] action stern from his diagnosis of asbestosis and colon cancer and the Ross II action only stems from his diagnosis of colon cancer, The claims of asbestosis have been dismissed as to the defendants in Ross ll. Both diseases have different scientific causes and factors attributable to their development. Also, the different diseases will have different jury instructions. Trying a malignancy cases and an asbestosis case before the same jury at the same time would inevitably result in jury confusion and cross-prejudice to the defendants from such a trial. Plaintiffs’ request for consolidation does not save judicial time or resources. Not only does it seek to move the combined cases to the head of the line, past other deserving plaintiffs awaiting their trial dates it guarantees that the consolidated trial would be longer and more confusing to the jury. There will be more multiple defendants defending allegations of two separate distinct diseases which will inevitably take a considerable amount of time and expenses and there is also the issue that there will be different sets of jury instructions. The causation and damages issues differ between the Ross I and Ross I] matters, For example, Mrs. Ross’ loss of consortium claim is not alleged in the Ross I matter, the asbestosis claim is not part of Ross Il. The perils of juror confusion and prejudice to the defendants are significantly increased if the cases are consolidated as the same jury, afier hearing evidence applicable to one Plaintiff or one set of defendants is then instructed to “forget” all that they have heard and start over again with new evidence, a new Plaintiff and different defendants. It is unrealistic to expect a jury to 4 TAR TTRIN AIT DIDI ICS TIATED RIC Ie ADRACTTION TO RE ARIRIBRE MATION TA CAMEALIN ATECO oe NR Hh BF YW NY wR RP NN BM RM Rm eee Oo a fa A Fk So Se |= FS eC we DH FF WH HY OO compartmentalize the testimony and be abic to keep the claims, different diseases and causes of action separate. WI. CONCLUSION For all of the reasons set forth above, Pribuss respectfully requests that the Court deny Plaintiffs’ Motion to Consolidate For All Purposes Including Trial, and instead try each of the cases separately, with separate juries and provide the parties with the order in which the cases will be tried. DATED: March 242012 ADAMS |NYEj BECHT LLP By: BARBARA R. ADAMS GINA A. HARAN Attorneys for Defendant PRIBUSS ENGINEERING, INC.CO WA PROOF OF SERVICE Lam over the age of eighteen years, not a party to the above-captioned matter, and employed by Adams | Nye| Becht LLP at 222 Keamy Street, Seventh Floor, San Francisco, Califomia, where the service described below took place on the date sct forth below. Person(s) Served: X] Electronic service (San Francisco asbestos cases): I caused a copy of each Document Served to be electronically served via LexisNexis File & Serve pursuant to San Francisco Superior Court Amended Asbestos General Order 158 (Order Mandating Electronic Filing and Service of Asbestos Pleadings, dated July 14, 2006) on the recipients designated on the Transaction Receipt located on the LexisNexis File & Serve website. Document Served: DEFENDANT PRIBUSS ENGINEERING, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION TO CONSOLIDATE Manner of Service: Ci Mail: | am readily familiar with my employer's practice for the collection and processing of correspondence for mailing with the United States Postal Service: such correspondence is deposited with the United States Postal Service on the same day in the ordinary course of business in the county where I work. On the date sct forth below, at my place of business, following ordinary business practices, | placed for collection and mailing by deposit in the United States Postal Service a copy of each Document Served, enclosed in a sealed envelope, with the postage thereon fully prepaid, each envelope being addressed to one of the Person(s) Served, in accordance with Code of Civil Procedure 1013(a). Facsimile: I transmitted by facsimile a copy of each Document Served mentioned above to each Person Served mentioned above pursuant to Code of Civil Procedure 1013{e). Personal service: 1 caused a copy of each Document Served to be hand delivered to each Person Served pursuant to Code of Civil Procedure 1011. If required, the actual server’s original proof of personal service will be filed with the court. Express Mail (U.S, Post Office): 1 deposited in a post office, mailbox, or other like facility regularly maintained by the United States Postal Service for receipt of Express Mail a copy of each Document Served in a sealed envelope with Express Mail postage paid, each envelope being addressed to each Person Served as mentioned above in accordance with Code of Civil Procedure 1013{c). Express Mail (other express service carrier): | deposited in a box or other like facility regularly maintained by an express scrvice carrier, or delivered to an authorized courier or driver authorized by the express service carrier to receive documents, a copy of each Document Served in an envelope or package designated by the express service carrier with delivery fees paid or provided for, each envelope being addressed to each Person Served in accordance with Code of Civil Procedure 1013 (c). I declare under penalty of perjury under the laws of the State of California that the foregoing is true and 6correct. Dated: March 24, 2012 Vcthe a Aetna Christine Thomas