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

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                1

& CORDERY, LLP

Law

IMAL, TADLOCK, K.

z
=

Bruce Imai, Esq. (Bar No. 053800)
Cristina M. Cinco, Esq. (Bar No. 197224)

Tina Yim, Esq. (Bar No. 232597) ELECTRONICALLY
IMAI, TADLOCK, KEENEY & CORDERY, LLP
100 BUSH STREET, SUITE 1300 FILED.
SAN FRANCISCO, CA 94104 een Court of California
Telephone: (415) 675-7000 QUNIY OF SBD T FANEISCO
Facsimile: (415) 675-7008 NOV 01 2011
Clerk of the Court
Attorneys for Defendant BY: ALISON AGBAY
COMMAIR MECHANICAL SERVICES Depuly Clerk
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
(ASBESTOS)
Plaintiffs,
MEMORANDUM OF POINTS AND
v. AUTHORITIES IN SUPPORT OF
DEFENDANT COMMAIR MECHANICAL
SERVICES’ MOTION TO DISMISS
C.C, MOORE & CO. ENGINEERS, et al., PLAINTIFFS' CLAIMS ARISING FROM
THE ALLEGED ASBESTOSIS,
ASBESTOS-RELATED PLEURAL
Defendants, DISEASE, AND OTHER LUNG INJURIES
Complaint Filed: December 17, 2010
Trial Date: May 21, 2012
Date: November 30, 2011
Time: 9:30 a.m,
Dept: 503
Judge: Hon. Teri L. Jackson
1. INTRODUCTION
Plaintiffs ROBERT ROSS and JEAN ROSS (hereinafter, “Plaintiffs”) have filed two
lawsuits based on Mr. Ross’ alleged asbestosis and asbestos-related pleural disease. In doing so,

Plaintiffs attempt to avoid the mandate of California Code of Civil Procedure §§ 335.1, 583.210,

and 583.250 requiring Plaintiffs to serve defendants with process within three years.

le
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT COMMAIR
MECHANICAL SERVICES’ MOTION TO DISMISS PLAINTIFFS’ CLAIMS ARISING FROM THE

ALLEGED ASBESTOSIS, ASBESTOS-RELATED PLEURAL DISEASE, AND OTHER LUNG INJURIESLAW OFFICES

IMAI, TADLOCK, KEENEY & CORDERY, LLP

0

54104

Defendant COMMAIR MECHANICAL SERVICES (““COMMAIR”) respectfully moves
this Court to dismiss Plaintiffs’ claims arising from Mr. Ross’ asbestosis and asbestos-related
pleural disease given that Plaintiffs already have a pending, pre-existing case based upon the
same injuries.

The Court should dismiss Plaintiffs’ claims for Mr. Ross’ breathing difficulties, asbestos-
related pleura! disease, asbestosis, and other lung damage given California law’s preclusion of
“splitting” a cause of action, i.e. filing multiple law suits to recover for the same injury.

IL. STATEMENT OF FACTS
AL Plaintiff's 2007 Complaint for Asbestos-Related Personal Injuries (Ross I)

Plaintiff Robert Ross filed a Complaint for an asbestos-related personal injury in which he
named various defendants, including 8,500 Does (hereinafter, “Ross 1”). (See Declaration of
Cristina M. Cinco (“Cinco Decl.”) attached as Exhibit A.) Jean Ross was not a plaintiff in Ross I.
Ud.) Defendant COMMAIR was not named as a defendant either in the initial Complaint or in
any subsequent amendments to the Complaint in Ross I. (See Cinco Decl., Exhibits A and B.)

Mr. Ross alleged in Ross I that his “exposure to asbestos, asbestos-containing products,
and other toxic and carcinogenic products, caused severe and permanent injury to [Mr. Ross],
including, but not limited to breathing difficulties, asbestosis, and/or other lung damage ... .”
(Cinco Decl., Exhibit A, at 27:12-16.) Mr. Ross further alleged that he was diagnosed with
asbestos-related pleural disease in May 2006, (/d.)

Ross I, which is based on Mr. Ross’ claim for asbestos-related pleural disease, breathing
difficulties, asbestosis, and/or other lung damage, remains pending in Court.

B. Plaintiffs’ 2010 Complaint for Asbestos-Related Personal Injuries
(Ross I).

On December 17, 2010, Plaintiffs Robert Ross and Jean Ross (hereinafter, “Plaintiffs”)
filed the instant action (hereinafter, “Ross IT’). Plaintiffs allege that Mr. Ross’ “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. [Mr. Ross] was

2
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT COMMAIR

MECHANICAL SERVICES’ MOTION TO DISMISS PLAINTIFFS' CLAIMS ARISING FROM THE
ALLEGED ASBESTOSIS, ASBESTOS-RELATED PLEURAL DISEASE, AND OTHER LUNG INJURIESLAW OFFICES

fy
4
a
>
~
a
3
=
2
a
%
”
a
Zz
a
3
“
¥
°
a
3
<
e
=
z

54104

SAN Fi

diagnosed with colon cancer on or about October 2010, and with asbestosis and asbestos-related
pleural disease on or about May 2009.” (Cinco Decl., Exhibit C, at 41:3-6.)

Both Ross I and Ross II seek redress for the same primary right — asbestos-related pleural
disease, asbestosis, breathing difficulties, and/or other lung damage. Thus, Plaintiffs have
violated the rule against splitting a cause of action. Those claims based upon asbestos-related
pleural disease, asbestosis, breathing difficulties, and/or other lung damage must be dismissed
from Ross II.

ul. LEGAL ARGUMENT
AL Plaintiffs Are Prohibited From “Splitting” A Single Cause of Action Into
Multiple Lawsuits.
Plaintiffs have violated the rule against splitting a cause of action in pursuing two separate
lawsuits for the same injuries. The primary right theory is a theory of code pleading that has long
been followed in California, where the law defines a cause of action in terms of “primary rights.”
A primary right is a plaintiff’s right to be free from the particular injury suffered, as distinguished
from the legal theory on which liability is claimed or the type of relief sought. (Crowley v.

Katleman (1994) 8 Cal. App.4” 1247, 1257; see also Rest.2d Judgments § 24.)

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. (/d.) The most salient characteristic of a primary
right is that it is indivisible: the violation of a 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 vy. Asbestos Corp., Ltd. (2000) 22 Cal.4” 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.4™ 1668, 1684-1685.) It
follows that splitting is prohibited even when multiple defendants cause a single injury:

A single cause of action may not be maintained against various
MEMORANDUM OF POINTS AND AUTHORS IN SUPPORT OF DEFENDANT COMMAIR

MECHANICAL SERVICES’ MOTION TO DISMISS PLAINTIFFS' CLAIMS ARISING FROM THE
ALLEGED ASBESTOSIS, ASBESTOS-RELATED PLEURAL DISEASE, AND OTHER LUNG INJURIESLAW OFFICES

IMAI, TADLOCK, KEENEY & CORDERY, LLP

0

54104

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 right, only
one cause of action arises.

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

Code of Civil Procedure §§ 379 and 389 related 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 suits involving multiple defendants. The Legislature recognizes
that the fair resolution of a claim requires that all parties materially interested in the claim be
joined in one action. (See Law Revision Commission Comments to Code of Civil Procedure §
389.)

The rule against splitting a cause of action sounds in principles of res judicata and
abatement. (Hamilton v. Asbestos Corp., Ltd. (2000) 22 Cal.4” 1127, 1147; Grisham v. Philip
Morris USA, Inc. (2007) 40 Cal.4" 623.) These interrelated rules 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.4 815, 829.)

By filing separate lawsuits alleging the same injury and the same set of facts, Plaintiffs
compromise the integrity of the court systems by inviting inconsistent rulings on the same legal
issues from different courts.

it cannot be denied that there are physical injuries alleged in Ross I which are identical to
the physical injuries alleged in Ross Il. Defendant COMMAIR moves the court in abatement to

preclude Plaintiffs from suing COMMAIR for identical injuries as alleged in Ross L Had

Plaintiffs wanted to pursue COMMAIR for those injuries, they should have named and served
COMMAIR in Ross I.
B. Plaintiffs’ Claims Based Upon Asbestosis and Asbestos-Related Pleural
Disease Must Be Dismissed For Failure to Serve COMMAIR Within
Three Years.
In bringing the same claims regarding asbestos-related pleural plaques, asbestosis,
breathing problems, and asbestos-related lung injuries in Ross H, Plaintiffs seek to improperly
4.
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT COMMAIR

MECHANICAL SERVICES’ MOTION TO DISMISS PLAINTIFFS' CLAIMS ARISING FROM THE
ALLEGED ASBESTOSIS, ASBESTOS-RELATED PLEURAL DISEASE, AND OTHER LUNG INJURIESLAW OFFICES

fy
4
a
>
~
a
3
=
2
a
%
”
a
Zz
a
3
“
¥
°
a
3
<
e
=
z

54104

SAN Fi

skirt the jurisdictional requirements of Code of Civil Procedure §§ 583.210 and 583.250, which
require Plaintiffs to serve all defendants in an action within three years of 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.)

Here, it is undisputable that Mr. Ross filed Ross I on March 5, 2007, alleging lung and
breathing issues from asbestos exposure. He did not name COMMAIR in Ross I. 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. Plaintiffs cannot circumvent the three-year limitations requirement of Code of Civil
Procedure §§ 583.210 and 583.250 by attempting to pursue COMMAIR in multiple litigation.

Cc. Plaintiffs Are Barred From Naming COMMAIR As A Defendant At This
Late Stage Based Upon The Doctrine Of Laches.

When a plaintiff has 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, Plaintiffs have
unreasonably delayed in naming COMMAIR as a defendant. Plaintiffs are trying to bring
COMMAIR into this litigation after more than three years of litigating Ross I. Plaintiffs failed to
exercise due diligence in naming COMMAIR in Ross I, with resulting prejudice to COMMAIR.
Mr. Ross has had the opportunity to investigate and conduct discovery, including depositions, and
litigate his asbestosis and asbestos-related claims for more than three years. COMMAIR was

never a party to Ross I and, as such, did not participate in that litigation, which has now placed

COMMAIR ata distinct disadvantage. Plaintiffs should not be allowed to maintain their claim of
asbestosis and asbestos-related pleural disease, which is more than three years old, as to
COMMAIR.
i
5.
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT COMMAIR

MECHANICAL SERVICES’ MOTION TO DISMISS PLAINTIFFS' CLAIMS ARISING FROM THE
ALLEGED ASBESTOSIS, ASBESTOS-RELATED PLEURAL DISEASE, AND OTHER LUNG INJURIESLAW OFFICES

IMAI, TADLOCK, KEENEY & CORDERY, LLP

0

54104

D. Jean Ross’ Loss Of Consortium Claim Is Barred By The Statute Of
Limitations Under Section 335.1.

To the extent that Mrs. Ross’ loss of consortium claim is based on Mr. Ross’ alleged
asbestosis, asbestos-related pleural disease, and other than lung injuries, those claims are barred.
by the statute of limitations. In Uram v. Abex Corp. (1990) 217 Cal.App.3d 1425, 1428-1430,
1436, the plaintiff spouse asserted a loss of consortium claim arising from the asbestos-related
injury to her husband. Uram was the first case to specifically determine the appropriate statute of
limitations period for a loss of consortium claim arising from an asbestos-related injury. (Jd. at
143.) The court in Vram held that the two-year statute of limitations under former Code of Civil
Procedure § 340, subdivision 3 (now section 335.1) applies to claims for loss of consortium.
(Uram, supra, at 1436-1438; 3 Witkin, Cal.Proc. 5h (2008) Statute of Limitations: Tort Actions,
Section 572, at 719.)

The Code of Civil Procedure § 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 first started his asbestos litigation by filing Ross I for his asbestos-related
injuries. Mrs. Ross was not a party to Ross I, which was filed in 2007. In fact, Mrs. Ross did not
file any loss of consortium claim until she and Mr. Ross filed Ross I] in 2010, which is well past
the allowed two-year limitations period.

Thus, Mrs. Ross’ loss of consortium claims, if any, should be limited to Mr. Ross’ alleged
colon cancer.

IV. CONCLUSION

Ross II is an attempt to re-litigate claims from Mr. Ross’ alleged asbestosis and asbestos-
related pleural disease. However, maintaining two lawsuits for violation of the same primary
right is clearly contrary to California law. Moreover, Plaintiffs’ attempt to recover in Ross II for
claims raised in Ross I violates the mandatory three-year time limit in which to serve the
summons related to Ross I.

-6-
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT COMMAIR

MECHANICAL SERVICES’ MOTION TO DISMISS PLAINTIFFS' CLAIMS ARISING FROM THE
ALLEGED ASBESTOSIS, ASBESTOS-RELATED PLEURAL DISEASE, AND OTHER LUNG INJURIESLAW OFFICES

IMAI, TADLOCK, KEENEY & CORDERY, LLP

0

54104

Defendant COMMAIR respectfully requests that this Court dismiss those portions of Ross
il relating to Mr. Ross’ asbestosis, breathing difficulties, asbestos-related pleural disease, and /or

other lung damage.

Dated: November I, 2011 IMAI, TADLOCK, KEENEY & CORDERY, LLP

By: /S/ Cristina M. Cinco
Cristina M. Cinco
Attorneys for Defendant
COMMAIR MECHANICAL SERVICES

T-
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT COMMAIR
MECHANICAL SERVICES’ MOTION TO DISMISS PLAINTIFFS’ CLAIMS ARISING FROM THE.
ALLEGED ASBESTOSIS, ASBESTOS-RELATED PLEURAL DISEASE, AND OTHER LUNG INJURIESLAW OFFICES

fy
4
a
>
~
a
3
=
2
a
%
”
a
Zz
a
3
“
¥
°
a
3
<
e
=
z

54104

SAN Fi

PROOF OF SERVICE
I, Heather Cherry, declare:

lam a resident of the State of California and over the age of eighteen 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:

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT
COMMAIR MECHANICAL SERVICES’ MOTION TO DISMISS PLAINTIFEFS'
CLAIMS ARISING FROM THE ALLEGED ASBESTOSIS, ASBESTOS-RELATED
PLEURAL DISEASE, AND OTHER LUNG INJURIES

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

I declare under penalty of perjury under the laws of the State of California that the above
is true and correct.

Executed on November |, 2011, at San Francisco, California.

/s/ Heather Cherry
Heather Cherry

Ross, Robert and Jean vy. C.C, Moore & Co, Engineers, et al.
SAN FRANCISCO SUPERIOR COURT NO. CGC-10-275731

-8-
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT COMMAIR
MECHANICAL SERVICES’ MOTION TO DISMISS PLAINTIFFS’ CLAIMS ARISING FROM THE
ALLEGED ASBESTOSIS, ASBESTOS-RELATED PLEURAL DISEASE, AND OTHER LUNG INJURIES