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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222 RUSH LANDING ROAD PO BOX 6169 NOVATO, CALIFORNIA 94948-6169 (415) 898-1555 BRAYTON@PURCELL LLP ATTORNEYS AT LAW DAVID R. DONADIO, ESQ., S.B. #154436 NANCY T. WILLIAMS, ESQ., S.B. #201095 IN“*PURCELL LLP Atomeys at Law ELECTRONICALLY 222 Rush Landing Road FILED P.O. Box 6169 _ Superior Court of California, Novato, California 94948-6169 County of San Francisco (415) 898-1555 Tentative Ruling Contest Email: contestasbestosTR@braytonlaw.com DEC 27 2011 Clerk of the Court Attorneys for Plaintiffs BY: VANESSA WU Deputy Clerk SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO ROBERT ROSS and JEAN ROSS, ASBESTOS No. CGC-10-275731 Plaintiffs, MEMORANDUM OF POINTS AND vs. AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR ORDER C.C. MOORE & CO. ENGINEERS; GRANTING LEAVE TO FILE Defendants as Reflected on Exhibit 1 AMENDMENT TO THE SECOND attached to the Summary Complaint ) AMENDED COMPLAINT TO herein; and DOES 1-8500. )} SUBSTITUTE DEFENDANTS' TRUE —_SSsSSSsSFsFsFsFssssSssSsSssSSSNNVAMESS FOR DOES 12-13 AND 1012- 1013 [C.C.P. § 473] Date: December 28, 2011 Time: 11:00 a.m. Dept.: 503, Hon. Teri L. Jackson Trial Date: N/A Filing Date: December 17, 2010 I STATEMENT OF FACTS Plaintiff, ROBERT ROSS, filed this asbestos personal injury action on December 17, 2010, claiming injuries and damages as a result of his asbestos-related lung disease. After furth discovery and investigation, it was revealed there are additional entities who may share liability for plaintiff ROBERT ROSS’s asbestos-related disease. Plaintiffs therefore now wish to file this Amendment to reflect the party’s true and correct name. Therefore, the two new defendants who Kitejured 1936 42-13 61012-1013, 1 ne MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR ORDER GRANTING LEA’ FILE AMENDM ‘TO THE SECOND AMENDED COMPLAINT TO SUBSTITUTE DEFENDANTS’ TRUE NAMES FOR DOES 1a. 12-1 3eo em YN DAH PB WN 10 manufactured, distributed, supplied and/or installed asbestos-containing products to plaintiff, ROBERT ROSS’s employers/jobsites, have been added to the Amendment to summary complaint (CAHILL CONSTRUCTION CO., INC. and DURO DYNE CORPORATION). Allowing the filing of the Amendment to the Second 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, new defendants will have ample time to complete pre-trial discovery and other trial preparation. I, LEGAL DISCUSSION Code of Civil Procedure section 473, provides in pertinent part: The court may, in furtherance of justice, and on any terms as may The court may likewise in is disereon afer notes to the averse 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 claims against any party. it Mt iit A Atojurea -emtacerp-doe-12-13 1012-1013. 2 NTW MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR ORDER GRANTING LEAVE TO. FE AMENDMENT TO THE SECOND AMENDED COMPLAINT TO SUBSTITUTE DEFENDANTS’ TRUE NAMES FOR DOES 12-13rt o 8 WY DH A & wD LY 10 It is appropriate to grant the requested relief via ex parte application. >) & most courts, leave to amend to substitute a defendant’s true name spplicaton for lenve te amend 's sinply presented to judge or commissioner for signature. I. Brown & R. Weil, California Practice Guide: Civil Procedure Before Trial (The Rutter Group 2009), Section 6:614. Plaintiffs are not presenting any new allegations to the complaint, but plaintiffs are merely substituting a previously unknown defendant for a “Doe.” Thus, the amendment should be allowed in the furtherance of justice plaintiff and his spouse may properly present their case. (See Seamans, 78 Cal App.2d at 826.) CONCLUSION In view of the foregoing, plaintiffs respectfully request the Ex Parte Application for Order Granting Leave to File an Amendment to Substitute Defendants’ te name for “Doe” be granted. Respectfully submitted, Dated: (2 / C Zz Le © BRAYTON*PURCELL LLP By: fancy T. Williams Attorneys for Plaintiffs Keita ita 12-33 81012-1012 3 NIW MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF BX PARTE APPLICA RANTING FILE AMENDMENT TO THE SECOND AMENDED COMPLAINT 10 SUBSHTUTE DEFENDANTS TRUE RSIS FoR DES OD AND 1012-1613