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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ATTORNEYS AT LAW 222 RUSH LANDING ROAD PO BOX 6169 NOVATO, CALIFORNIA 94948-6169 (415) 898-1553 BRAYTON@PURCELL LLP os Oo; mM ID DAH RB WwW HY 12 DAVID R. DONADIO, ESQ., S.B. #154436 BRAYTON*PURCELL LLP Attorneys at Law 222 Rush Landing Road P.O. Box 6169 . Novato, California 94948-6169 ELECTRONICALLY FILED Superior Court of California, (415) 898-1555 County of San Francisco ‘Tentative Ruling Contest Email: contestasbestosTR@bravtonlaw.com APR 09 2012 Clerk of the Court BY: VANESSA WU Deputy Clerk Attorneys for Plaintiffs SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO ASBESTOS No. CGC-10-2735731 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER GRANTING LEAVE TO FILE THIRD AMENDED ROBERT ROSS and JEAN ROSS, Plaintiffs, vs. C.C. MOORE & CO. ENGINEERS, Nee Ne ee ea Defendants as Reflected on Exhibit 1 COMPLAINT attached to the Summary Complaint herein; and DOES 1-8500. Date: May 8, 2012 Time: 9:30 a.m. Room: 503 te Hon. Teri L. Jackson Filing Date: December 17, 2010 I. STATEMENT OF FACTS On December 17, 2010, plaintiffs filed this action claiming injuries and damages as a result of ROBERT ROSS’ colon cancer and asbestos-related lung disease. Upon a recent review of the file, it was determined there are 7 defendants that were inadvertently omitted from the complaint herein. Therefore, plaintiffs wish to add these new entities as defendants to the Third Amended Complaint as follows: The defendants who manufactured, installed, distributed, sold and/or supplied asbestos-containing products to decedent's employers/jobsites are added to Exhibits B-1, C (ANDERSON, ROWE & BUCKLEY, INC.; CAHILL CONTRACTORS, INC.; CUPERTINO Mie KMnferedieasa rh MTA-3AMD CMP s 1 i MEMOR PEM FPO! AND AUTHORITIES IN SUPPORT OF 1 1 GRAN’ VE TO FILE THIRD: OSE COMPLAINTony AW B Ww ELECTRIC, INC., J.T. THORPE & SON, INC., MALM METAL PRODUCTS, INC.; PERINI CORPORATION; RAYMOND INTERIOR SYSTEMS-NORTH). Allowing the filing of the Third Amended Complaint is in the furtherance of justice so that plaintiffs may properly present their case. Since there is no trial date assigned in this case, defendants will have ample time to complete pre-trial discovery. i. Ei 1; IN Code of Civil Procedure section 473, provides in pertinent part: The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding... ‘The court may likewise in its discretion, after notice to the adverse party, allow on any terms as may be just, an amendment to any pleading or proceeding in other particulars... California courts have uniformly permitted parties great liberality in amending pleadings. "(I]t can very rarely happen that a court will be justified in refusing a party leave to amend his pleading so that he may properly present his case." Seamans v. Standard Hotel Corporations (1947) 78 Cal. App.2d 818, 826. Underscoring this policy of liberality in amending pleadings is the fact that mandamus is available for review of the trial court's denial of leave to amend a pleading, but not for permitting such leave, and that appellate courts commonly reverse trial court's denial of leave to amend. 8 Witkin California Procedure (3d Ed. 1985) "Pleading," §§ 1123, 1124, pp. 540-541. Moreover, the statute of limitations under C.C.P. § 340.2 has not run for the adding of new parties or the filing of new colon cancer claims against any party. All allegations in the proposed Third Amended Complaint are based upon the same facts as alleged in the original Complaint: plaintiff ROBERT ROSS' colon cancer and asbestos- related lung disease due to exposure to asbestos and asbestos-containing products. Thus, the amendment should be allowed in the furtherance of justice so that plaintiffs may properly present their case. (See Seamans, 78 Cal, App.2d at 826.) In the interests of preserving environmental resources, plaintiffs request that the Third Amended Complaint be deemed served on ail defendants who have previously appeared herein,1 | as of the date of the granting of the motion to amend (as defendants have been served with a cop of the Third Amended Complaint as Exhibit A to the Declaration of David R. Donadio, filed herewith). Additionally, C-C.P. § 128(a)(3) provides for the orderly conduct of proceedings before the Court and therefore gives the court discretion to deem the amended complaint as served on all defendants who previously appeared in this action. Plaintiffs move the Court for this further relief on the grounds that it is a waste of resources fo re-serve the amended complaint. This is especially true when plaintiffs routinely stipulate with defendants that their original answer can be used as their answer to the amended complaint. Plaintiffs urge the court.in these environmentally sensitive times that additional enormous environmental resources are also saved by granting plaintiffs’ relief. Finally, the Court is not missing out on initial appearance fees, because all newly served defendants will still need to pay when making their initial appearance. There is no additional fee | required when plaintiffs amend a complaint or when an already served defendant is re-served. : CONCLUSION In view of the foregoing, plaintiffs respectfully request the Motion for Order Granting Leave to File a Third Amended Complaint be granted and that the Third Amended Complaint be deemed served on all defendants who have previously appeared herein, as of the date of the || granting of the Motion to Amend. Plaintiffs will stipulate that any defendant's previous answer to the complaint will stand || as the answer to the Third Amended Complaint. Defendants that wish to:so stipulate are invited Respectfully submitted, . 2411 datea: WS liz BRAYTON®PURCELL LLP By: David R’ Donadio Attorneys for PlaintiffsEXHIBIT AoO em NY DA mw RB YW NK 10 DAVID R. DONADIO, ESQ., S.B. #154436 BRAYTON*®PURCELL LLP Attorneys at Law 222 Rush Landing Road P.O, Box 6169 Novato, California 94948-6169 (415) 898-1555 Attorneys for Plaintiffs SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO ROBERT ROSS and JEAN ROSS, Plaintiffs, ASBESTOS No. CGC-10-275731 STIPULATION THAT ANSWER TO ORIGINAL COMPLAINT MAY STAND AS ANSWER TO THIRD AMENDED COMPLAINT VS. C.C, MOORE & CO. ENGINEERS; Defendants as Reflected on Exhibit 1 attached to the Summary Complaint herein; and DOES 1-8500. eee TT IS HEREBY STIPULATED by and between plaintiffs and defendant below indicated, through their respective attomeys, that defendant's answer to the original Complaint herein may stand as defendant's answer to the Third Amended Complaint. All new matters are deemed controverted. Dated: BRAYTON # PURCELL LLP By: David R. Denadio Attomeys for Plaintiffs Dated: By: Attomeys for Defendant KAlnjucsd I MMipLiPS AEA TAMD Ct STIPULATION THAT ANSWER TO ORIGINAL COMPLAINT MAY STAND AS ANSWER TO THIRD AMENDED COMPLAINT