Motion-Secondary: ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS

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                                POOLE & SHAFFERY, LLP
400 SOUTH HOPE STREET, SUITE 1100

LOS ANGELES, C,

TELEPHONE

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POOLE & SHAFFERY, LLP

John H. Shaffery (SBN 160119)
E-mail: jshaffery@pooleshaffery.com
Brian R. Tinkham (SBN 237053)
E-mail: btinkham@pooleshaffery.com
James H. Wooten fll (SBN 263701)
E-mail: jwooten@pooleshaffery.com
400 South Hope Street, Suite 1100
Los Angeles, California 90071

(213) 439-5390 Phone

(213) 439-0183 Facsimile

Attorneys for Defendant,
H&C INVESTMENT ASSOCIATES, INC.

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

JAN 11 2012

Clerk of the Court
BY: VANESSA WU
Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO

ROBERT ROSS and JEAN ROSS,
Plaintiff,
vs.
C.C. MOORE & CO., ENGINEERS;
Defendants as Reflected on Exhibit | attached
to the Summary Complaint herein; and DOES
1-8500, et al.

Defendants.

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Case No. CGC-10-27573 1 [Assigned to the
Hon. Teri L. Jackson]

DEFENDANT H&C INVESTMENT
ASSOCIATES, INC."S MEMORANDUM OF
POINTS AND AUTHORITIES IN SUPPORT
OF ITS MOTION TO DISMISS
PLAINTIFFS' 2010 COMPLAINT FOR
ASBESTOS-RELATED PERSONAL
INJURIES AND LOSS OF CONSORTIUM

Date: February 8, 2011
Time: 9:00 a.m.
Dept. 503

[Filed Concurrently with Notice of Motion and
Declaration of James H. Wooten III.}

December 17, 2010
None

Complaint Filed:
Trial Date:

F:AClients2\975%3 100- ROBERT ROSS v. CC MOORE (H&C)PLEADINGS\Mtn, Dismiss-P&A.002.wpd
DEFENDANT H&C INVESTMENT ASSOCIATES, INC.°S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS
MOTION TO DISMISS PLAINTIFFS’ 2010 COMPLAINT FOR ASBESTOS-RELATED PERSONAL INJURIES AND LOSS OF
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POOLE & SHAFFERY, LLP
FACSIMILE (213) 439-0183

400 SOUTH HOPE STREET, SUITE 1100

TELEPHONE

LOS ANGELES, CALIFORNIA 90071
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MEMORANDUM OF POINTS AND AUTHORITIES

I Introduction.

Plaintiffs ROBERT ROSS and JEAN ROSS (individually, “Mr. Ross” or “Mrs. Ross,” or
collectively, “Plaintiffs”) have filed two separate lawsuits, one in March 2007 and another in
December 2010, based upon Mr. Ross’ alleged asbestosis-related personal injuries. By doing so,
Plaintiffs are attempting to avoid the service requirements stated in Sections 335.1, 583.210, and
583.250 of the California Code of Civil Procedure. Defendant H&C Investment Associates, Inc.
(“H&C”) respectfully moves this Court to dismiss the 2010 Complaint on the ground that the asbestos-
related personal injury claims of Mr. Ross in the 2010 Complaint are also the subject of a lawsuit
previously filed by Mr. Ross in 2007. Plaintiffs’ 2010 Complaint is against California law as it causes
splits of causes of action between the 2007 Complaint and the 2010 Complaint. Mrs, Ross’ claim is
similarly barred by the states of limitations under Section 335.1 of the California Code of Civil
Procedure. Moreover, all of Plaintiffs’ claims are barred by the doctrine of laches. Thus, this Court
should dismiss Plaintiffs’ 2010 Complaint in its entirety,

Il. Statement of Facts.

A. The 2007 Ross Complaint for Personal Injuries.

On March 5, 2007, plaintiff Robert Ross filed a Complaint for Personal Injury - Asbestos, in
San Francisco Superior Court. [March 5, 2007 Complaint (“2007 Complaint”), Wooten Decl., Ex.
“A.”] Mrs. Ross was not named as a plaintiffin the 2007 Complaint. Defendant H&C was not named
[Wooten Decl., Exs. “A” & “B.”]

In the 2007 Complaint, Mr. Ross alleged that:

“Plaintiff's exposure to asbestos, asbestos-containing products, and other toxic

carcinogenic products, caused severe and permanent injury to the plaintiff, including

but not limited to breathing difficulties, asbestosis, and/or other lung damage, and

increased fear of developing mesothelioma, lung cancer and other various cancers.

Plaintiff was diagnosed with asbestos-related pleural disease on or about May 2006.”

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DEFENDANT H&C INVESTMENT ASSOCIATES, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS
MOTION TO DISMISS PLAINTIFFS' 2010 COMPLAINT FOR ASBESTOS-RELATED PERSONAL INJURIES AND LOSS OF
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400 SOUTH HOPE STREET, SUITE 1100
FACSIMILE (213) 439-0183

TELEPHONE

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[2007 Complaint, p. 27:12-16, Wooten Decl., Ex, “A.”]
The personal injury claims set forth in the 2007 Complaint are still pending before this Court.
[See SFSC Case No. CGC07-27-4099.]

B. The 2010 Ross Complaint for Personal Injuries and Loss of Consortium.

On December 17, 2010, Plaintiffs filed their separate Complaint for Personal Injury and Loss
of Consortium - Asbestos, in San Francisco Superior Court, [December 17, 2010 Complaint (“2010
Complaint”), Wooten Decl., Ex. “C.”] Mrs. Ross was named as a plaintiff in the 2010 Complaint.
Defendant H&C was named as a defendant for the first time in the 2010 Complaint.

In the 2010 Complaint, Plaintiffs’ alleged that:

“[(Mr. Ross’] exposure to asbestos and asbestos-containing products caused severe and

permanent injury to the plaintiff, including but not limited to breathing difficulties

and/or other lung damage. Plaintiff was diagnosed with colon cancer on or about

October 2010, and with asbestosis and asbestos-related pleural disease on or about

May 2009.”

[2010 Complaint, p. 41:3-6, Wooten Decl., Ex “ C.”]

Both the 2007 Complaint and the 2010 Complaint seek redress for the same primary right, that
is, compensation for asbestos-related personal inguries, including cancer, asbestosis, asbestos-related
pleural disease, breathing difficulties and other lung damage. Thus, Plaintiffs have violated the rule
against splitting a cause of action and any and all claims based upon asbestos-related pleural disease,
asbestos, breathing difficulties and/or other lung damage must be dismissed from the 2010 Complaint.

IL, The 2010 Complaint Should Be Dismissed as to H&C.

A. The 2010 Complaint Constitutes Impermissible Splitting of Mr. Ross’

Personal Injury Causes Of Action Into Multiple Lawsuits.

Plaintiffs have violated that rule against splitting a cause of action in perusing two separate
lawsuits for the same injuries. The primary rights theory is a theory of code pleading where the law
defines a cause of action in terms of “primary rights.” A primary right is a plaintiffs right to be free

from the particular injury suffered, as distinguished form the legal theory on which liability is claimed

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FAClients2\975\3100- ROBERT ROSS v. CC MOORE (&C)\PLEADINGS\Mmm Dismiss-P&A.002.wpd
DEFENDANT H&C INVESTMENT ASSOCIATES, INC.'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS
MOTION TO DISMISS PLAINTIEFS' 2010 COMPLAINT FOR ASBESTOS-RELATED PERSONAL INJURIES AND LOSS OF
CONSORTIUMPOOLE & SHATFERY, LLP
400 SOUTH HOPE STREET, SUITE 1100

LOS ANGELES, CALIFORNIA 90071

TELEPHONE (213) 439-5390

FACSIMILE (213) 439-0183

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or the type of relief sought. [Crowley vs. Kattlemar (1994) 8 Cal. 4" 1247,1257.]

The primary right theory provides that a “cause of action” is comprised of a “primary right”
of the plaintiff, a corresponding “primary duty” of the defendant, and a wrongful act by the defendant
constituting a breach of that duty. [Crow/ey, supra, 8 Cal.App.4th at 1257; see also Rest.2d Judgments
§24.] The most salient characteristic of a primary right is that it is indivisible: the violation ofa single
primary right gives rise to but a single cause of action. [/d.]

“Full recovery for each cause of action (same ‘primary right’) must be obtained in a single
lawsuit. A plaintiff cannot ‘split’ a cause of action into successive suits.” [Weil & Brown, { 6:250 at
6-69; Hamilton v. Asbestos Corp., Ltd. (2000) 22 Cal.4th 1127, 1145; Craig v. County of Los Angeles
(1990) 221 Cal App.3d 294, 130.] More than one wrongful act may constitute a single cause of action.
[Burdette v. Carrier Corp. (2008) 158 Cal. App.4th 1668, 1684-1685.] It follows that, under California
law, splitting a cause of action is prohibited even when multiple defendants cause a single injury:

“A single cause of action may not be maintained against various defendants in

separate lawsuits as the plaintiff has suffered but one injury. Regardless of the number

of legal theories which the complaint states, if there is but one injury to a primary

tight, only one cause of action arises.”

[Lippert v. Bailey (1996) 24 Cal.App.2d 376, 382.]

Code of Civil Procedure Sections 379 and 389 relate to permissible and compulsory joinder
of parties essential to the resolution of the action also suggest that the prohibition against splitting a
cause of action applies equally to suites involving multiple defendants. The legislature recognizes that
the fair resolution ofa claim requires that all parties materially interested in the claim be joined in one
action. [See Revision Commission Comments to Code of Civil Procedure Section 389.7.]

By pursuing two separate lawsuits for the same injury, Plaintiffs have violated these
interrelated rules, which are intended to “preserve the integrity of the judicial system, promote judicial
economy, and protect litigants from harassment by vexatious litigation.” [Vandenberg v. Superior
Court (1999) 21 Cal.4th 815, 829.]

By filing separate lawsuits alleging the same injury and same sct of facts, Plaintiffs

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F:Clients2}97513100- ROBERT ROSS v. CC MOORE (H&C)\PLEADINGS\Min Dismiss-P&A.002.wpd
DEFENDANT H&C INVESTMENT ASSOCIATES, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OFITS
MOTION TO DISMISS PLAINTIFFS' 2010 COMPLAINT FOR ASBESTOS-RELATED PERSONAL INJURIES AND LOSS OF
CONSORTIUMPOOLE & SHAFFERY, LLP
400 SOUTH HOPE STREET, SUITE 1100
FACSIMILE (213) 439-0183

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compromise the integrity of the court system by inviting inconsistent ruling on the same legal issues
for different courts.

It cannot be denied that there are physical injures listed in the 2007 Complaint which are
identical to the physical injuries alleged in the 2010 Complaint. H&C moves this court to preclude
Plaintiffs from suing H&C for identical injuries as alleged in the 2007 Complaint. Had plaintiffs
wanted to pursue H&C for those injures, they should have named and served H&C in the 2007
Complaint.

B. Mr. Ross Failed to Timely Serve the 2007 Complaint on Defendant H&C.

A second defect in the Plaintiffs’ 2010 Complaint is that it improperly seeks to skirt the
jurisdictional requirements Sections 583.210 and 583.250 of the Code of Civil Procedure. These
sections provide that a plaintiff must serve all defendants in an action within three years after filing
the complaint. “From the time such a complaint is filed, the plaintiff has three years to identify and
serve the defendant.” [Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1118.] A plaintiff's failure to
identify and serve all fictitious defendants within three years of the date of the complaint bars any later
action against those defendants. [Nelson v. State (1982) 139 Cal.App.3d 72, 76-77, Mike Silverman
& Assoc. v. Drai (C.D. Cal. 1987) 569.F.Supp. 741, 744.]

It is undisputed that Mr. Ross filed his 2007 Complaint alleging lung and breathing issues for
asbestos exposure. He did not name H&C in the 2007 Complaint. Now that it is too late for him to
do so, he brings a second action for the same injuries as well as additional injuries. Plaintiff cannot
circumvent the three-year limitations requirement of Sections 583.210 and 583.250 of the Code of
Civil Procedure by attempting to pursue H& C in multiple litigation.

Cc. Jean Ross’ Loss of Consortium Claim Is Barred By the Statute of Limitations

Under Section 335 of the Code of Civil Procedure.

To the extent that Mrs. Ross’ loss of consortium claim is based on her husband’s alleged
asbestosis and other lung injuries, those claims are bared by the statute of limitations. In Uram v. Abex
Corp. (1990) 217 Cal.App.3d 1425, 1428-1430, 1436, (“Uram”), the plaintiff spouse asserted a loss

of consortium claim arising from the asbestos-related injury to her husband. Uram held that, in such

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DEFENDANT H&C INVESTMENT ASSOCIATES, INC,’§ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS
MOTION TO DISMISS PLAINTIFFS’ 2010 COMPLAINT FOR ASBESTOS-RELATED PERSONAL INJURIES AND LOSS OF
CONSORTIUMPOOLE & SHAFFERY, LLP
400 SOUTH HOPE STREET, SUITE 1100

LOS ANGELES, CALIFORNIA 90071

TELEPHONE (213} 439-5390

FACSIMILE (213) 439-0183

Co ey DH FF WwW NH FR

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cases, the two-year statute of limitations under former Code of Civil Procedure § 340(3) (now section
335.1) applies to claims for loss of consortium. [Uram, supra, 217 Cal.App.3d at 1436-1438; 3 Witkin,
Cal.Proc. 5th (2008) Statute of Limitations:Tort Actions, § 572, at p. 719]. Code of Civil Procedure
[Code Civ. Proc.§ 335.1] states that the period for commencement must be within two years for injury
to an individual caused by the wrongful act or neglect of another.

Mr. Ross filed the 2007 Complaint on March 5, 2007. Mrs. Ross was not a party to that action,
and no claim for loss of consortium was alleged. Since Mr. Ross’ alleged pleural disease diagnosis
date in the 2007 Complaint was may 2006, the latest date on which Mr. Ross could have sued for loss
of consortium would have been sometime in May 2008. In fact, Mrs. Ross did not file any loss of
consortium claims until the filing of the 2010 Complaint. This was well past the two year limitations
period set forth in Section 335.1 of the Code of Civil Procedure. Consequently, Mrs. Ross’ loss of
consortium claim must be dismissed.

D. Plaintiffs’ Are Barred From Naming H&C as a Defendant Based Upon the

Doctrine of Laches.

When a plaintiffhas unreasonably delayed in seeking to amend his complaint, causing specific
prejudice to the defendant, the Court has discretion to deny leave to amend to substitute the true names
of any Doe defendant under the doctrine of laches. Here, the plaintiffs have unreasonably delayed in
bringing their claims against H&C. Plaintiffs are, in effect, using the 2010 Complaint as a substitute
tosue H&C for the same personal injury claims set forth in the 2007 Complaint, after failing to bring

action against H&C for nearly four years of litigation. Plaintiffs failed to exercise due diligence in

naming H&C in their 2007 Complaint, and H&C has been prejudiced. Mr. Ross has had the
opportunity to investigate, conduct discovery including depositions, and litigate his asbestos-related
personal injury claims for nearly four years. Meanwhile, H&C never was named in the 2007
Complaint, nor did it ever have an opportunity to investigate, conduct discovery, and prepare a defense
in that action. It was not afforded any opportunity to participate in that litigation. This has been highly
prejudicial to H&C, which would be at a distinct disadvantage of time and expense were it to be

required to join in a four-year old lawsuit at this late date. As a result, the plaintiffs’ asbestos-related

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F:\Clients2\97513100- ROBERT ROSS v. CC MOORE (H&C)\PLEADINGS\Min.Dismiss-P&A.002.wpd
DEFENDANT H&C INVESTMENT ASSOCIATES, INCS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS
MOTION TO DISMISS PLAINTIFFS' 2010 COMPLAINT FOR ASBESTOS-RELATED PERSONAL INJURIES AND LOSS OF
CONSORTIUMPOOLE & SHAFFERY, LL?
400 SOUTH HOPE STREET, SUITE 1100

LOS ANGELES, CALIFORNIA 90071

TELEPHONE (213) 439-5390

FACSIMILE (213) 439-0183

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BoM YW RP NY NY NN YD ee RB Be Se eB Re Be oe
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claim against H&C should be barred by the doctrine of laches.
IV. Conclusion.

Plaintiffs’ 2010 Complaint is an impermissible attempt to circumvent well-settled statutory and
case law prohibiting the splitting of Mr. Ross” asbestos-related personal injury causes of action. It also
violates the mandatory three-year service time limit under Code of Civil Procedure §§ 583.210 and

583.250 with respect to the 2007 Complaint. In addition, Mrs. Ross’ Joss of consortium claim in the

2010 Complaint, being derivative of Mr. Ross’ asbestos-related personal injury claims, is barred by
the two-year statute of limitations of Section 335.1 of the Code of Civil Procedure. Finally, the use
of the 2010 Complaint to sue H&C for the same asbestos-related personal injury claims as those set
forth in the 2007 Complaint should be barred by the doctrine of laches.

For all these reasons, and based on the foregoing points and authorities, defendant H&C

Investment Associates, Inc. respectfully requests that this Court dismiss Plaintiffs’ 2010 Complaint.

POOLE & SHAFFERY, LLP

John H. Shaffery

Brian R. Tinkham

James H. Wooten III
Attorneys for Defendant, H&C Investment
Associates, Inc.

DATED: January » 2012

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DEFENDANT H&C INVESTMENT ASSOCIATES, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS
MOTION TO DISMISS PLAINTIFES' 2010 COMPLAINT FOR ASBESTOS-RELATED PERSONAL INJURIES AND LOSS OF
CONSORTIUMPROOF OF SERVICE
(C.C.P. § 1013a and § 2015.5)

Robert Ross and Jean Ross v. C.C. Moore & Co. Engineers, et al
SFSC Case No.: CGC-10-275731

am employed in the County of Los Angeles, State of California; | am over the age of 18 years and
nota party to the within action; my business address is 445 S. Figueroa Street, Suite 2520, Los Angeles, CA
90071.

On January 11, 2012, I served the foregoing document described as: DEFENDANT H&C
INVESTMENT ASSOCIATES, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF ITS MOTION TO DISMISS PLAINTIFFS' 2010 COMPLAINT FOR
ASBESTOS-RELATED PERSONAL INJURIES AND LOSS OF CONSORTIUM on the
interested parties in said action addressed as follows:

seed

SEE LEXIS/NEXIS SERVICE LIST

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a BY ELECTRONIC MAIL OR ELECTRONIC TRANSMISSION - I provided the document(s)
listed above electronically to the Lexis Nexis website by which all parties on the Lexis Nexis service list are
deemed served on the date indicated below, if the document(s) are provided to Lexis Nexis by 5:00 p.m.

a By Mail [State] 1 am readily familiar with Poole & Shaffery, LLP’s practice for the collection and
processing of mail with the United States Postal Service; such envelope will be deposited with the United
States Postal Service on the above date in the ordinary course of business at the business address shown
above; and such e nvelope was placed for collection and mailing on the above date according to Poole &
Shaffery, LLP’s ordinary business practices.

a I caused said document(s) to be transmitted by facsimile to each addressee set forth below on this
date before 5:00 p.m. The transmission of this document was complete and without error.

a I caused such envelope to delivered via overnight delivery to the party(ies) listed on the attached
mailing list.

Executed on January 11, 2012, at Los Angeles, California.

ta [State] I declare under penalty of perjury under the laws of the State of California that the foregoing
is true and correct.

o [Federal] I declare that I am employed in the office of a member of the bar of this Court at whose
direction this service was made.

Veronica Rincon, Decl:

ole

PROOF OF SERVICE