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.
For full print and download access, please subscribe at https://www.trellis.law/.
Please wait a moment while we load this page.
Preview
=~ oo ODN DO GF F&F W NY 27 BENNETT, SAMUELSEN, REYNOLI A PROFESSIONAL CORP, 1301 MARINA VILLAGE PARKWAY, SUITE 300 ALAMEDA, CA 94612-2941 $0) dates JOHN G COWPERTHWAITE, CSB# 96375 jcowperthwaite@bsralaw.com LAUREN E. POWE, CSB# 239817 ELECTRONICALLY lpowe@bsralaw.com FILED BENNETT, SAMUELSEN, REYNOLDS & ALLARD Superior Court of California, A Professional Corporation County of San Francisco lorneys at Law 1301 Marina Village Parkway, Suite 300 FEB 06 2012 Alameda, California 94501-1084 oclerk of the Court Telephone: (510) 444-7688 Facsimile: (510) 444-5849 Deputy Clerk Attorneys for Defendant SLAKEY BROTHERS, INC. IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO ROBERT ROSS and JEAN ROSS, NO. CGC-10-275731 Plaintiffs, DEFENDANT SLAKEY BROTHERS, INC, POINTS AND AUTHORITIES IN vs. SUPPORT OF ITS MOTION TO DISMISS PLAINTIFFS’ CLAIMS ARISING FROM C.C, MOORE & CO. ENGINEERS; et al., THE ALLEGED ASBESTOSIS, ASBESTOS-RELATED PLEURAL Defendants. DISEASE, AND OTHER LUNG / INJURIES Date: March 27, 2012 Time: 9:30 a.m. Dept. 503: Judge: Hon. Teri L. Jackson Il. INTRODUCTION Plaintiffs ROBERT ROSS and JEAN ROSS (hereinafter “Plaintiffs”) have filed two lawsuits based on ROBERT ROSS' alleged asbestosis and asbestos-related pleural disease, one in March 2007 and another in December 2010. By doing do, Plaintiffs attempt to avoid the mandate of California Code of Civil Procedure §§335.1, 583.210, and 583.250 which require plaintiffs to serve defendants with process within three years. Defendant SLAKEY BROTHERS, INC respectfully moves this Court to dismiss Plaintiffs’ claims arising from ROBERT ROSS’ asbestosis and asbestos related pleural ~1- DEFENDANT SLAKEY BROTHERS, INC.’S NOTICE OF MOTION TO DISMISS.=~ oo ODN DO GF F&F W NY 27 BENNETT, SAMUELSEN, REYNOLI A PROFESSIONAL CORP, 1301 MARINA VILLAGE PARKWAY, SUITE 300 ALAMEDA, CA 94612-2941 $0) dates disease given that plaintiffs already have a pending, pre-existing injury personal injury lawsuit based upon the same injuries (See San Francisco County Superior Court Case No. CGC-07-274099). California law preciudes “splitting” a cause of action, i.e. filing of multiple lawsuits to recover for the same injury, therefore, plaintiff ROBERT ROSS’ claims are time barred as is plaintiff JEAN ROSS’ claim for loss of consortium. Accordingly, the Court should dismiss plaintiffs’ claims for and relating to asbestosis, asbestos-related pleural disease, asbestos-related breathing difficulties, and other lung damage. I. STATEMENT OF FACTS A. The 2007 Robert Ross Complaint for Personal Injuries On March 5, 2007, plaintiff ROBERT ROSS filed a Complaint for personal-injury for injuries he alleged were caused by exposure to asbestos and named numerous defendants, including 8,500 Does. (Declaration of Lauren E. Powe, attached as Exhibit A). Defendant SLAKEY BROTHERS, INC was not named in the 2007 Complaint or in any subsequent amendments to the 2007 Complaint. Plaintiff ROBERT ROSS alleged in his 2007 Complaint that his “exposure to asbestos, asbestos-containing products, and other toxic carcinogenic products, caused severe and permanent injury to Mr. Ross, including but not limited to breathing difficulties, asbestosis, and/or other lung damage ....’(Declaration of Lauren E. Powe; Exhibit A at p. 27:12-16) Plaintiff ROBERT ROSS further alleged that he was diagnosed with asbestos- related pleural disease in May 2006. Plaintiff JEAN ROSS was not a party to the 2007 Complaint. (See Exhibit A). Plaintiff ROBERT ROSS’ 2007 personal injury matter for asbestosis, asbestos- related pleural disease, asbestos-related breathing difficulties, and other lung damage is still pending before this Court. B. The 2010 Robert and Jean Ross Complaint for Asbestos-Related Personal Injuries On December 17, 2010, plaintiffs ROBERT ROSS and JEAN ROSS, over three and ~2- DEFENDANT SLAKEY BROTHERS, INC.’S NOTICE OF MOTION TO DISMISS.=~ oo ODN DO GF F&F W NY 27 BENNETT, SAMUELSEN, REYNOLI LARD A PROFESSIONAL CORP, 1301 MARINA VILLAGE PARKWAY, SUITE 300 ALAMEDA, CA 94612-2941 $0) dates a half years after filing the 2007 Complaint, filed a second asbestos-related personal injury lawsuit. (Declaration of Lauren E. Powe; Exhibit B). Plaintiff JEAN ROSS was named as a plaintiff in the 2010 Complaint. Defendant SLAKEY BROTHERS, INC. was named as a defendant for the first time in the 2010 Complaint. Plaintiffs allege in the 2010 Complaint that plaintiff ROBERT 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. 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 B, at p. 413-6). Both the 2007 Complaint and the 2010 Complaint seek redress for the same primary right compensation for asbestos related personal injuries for asbestosis, asbestos- related pleural disease, asbestos-related breathing difficulties, and other lung damage. By doing so, plaintiffs have violated the rule against splitting a cause of action and those claims based upon asbestosis, asbestos-related pleural disease, asbestos-related breathing difficulties, and other lung damage must be dismissed from Plaintiffs’ 2010 Complaint. I. LEGAL ARGUMENT A. 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 California, by pursuing two separate lawsuits for the same injury. The primary right theory is a theory of code pleading that has been followed in California for a long time. California law defines a casue od action in terms of “primary rights.” The primary right is simply 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. 4" 666). In Crowley, the court clarified: The primary right theory ... provides that a “cause of action” is comprised of a ~3- DEFENDANT SLAKEY BROTHERS, INC.’S NOTICE OF MOTION TO DISMISS.=~ oo ODN DO GF F&F W NY 27 BENNETT, SAMUELSEN, REYNOLI LARD A PROFESSIONAL CORP, 1301 MARINA VILLAGE PARKWAY, SUITE 300 ALAMEDA, CA 94612-2941 $0) dates “primary right” of the plaintiff, and a corresponding “primary duty” of the defendant, and a wrongful act by the defendant constituting a breach of that duty. The most salient characteristic of a primary right is that it is indivisibie: the violation of a single primary right gives rise to but a single cause of action. A pleading that states the violation of one primary right in two causes of action contravenes the rule against splitting cause of action. (Crowley v. Katleman, 8 Cal. 4" at 681) (internal citations omitted; See also Hamilton v. Asbestos Corp., Ltd., (2000) 22 Cal. 4° 1127). “Fuil 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, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 200) {| 6:250 et seq., p. 6-69 citing Hamilton, supra at p. 1145). More than one wrongful act may constitute a single cause of action. (Burdette v. Carrier Corp., (2008) 158 Cal. App. 4" 1668, 1684-85). 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 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) 241 Cal. App. 2d 376, 382.) Code of Civil Procedure sections 379 and 389 regarding the permissible and compulsory joinder of parties essential to resolution of the action also suggest that the prohibition against splitting a cause of action applies equally to suits involving multiple defendants. California Legislature recognized 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 the Code of Civil Procedure section 389). The rule against splitting a cause of action sounds in principles of res judicata and abatement. (Hamilton, supra, 22 Cal. 4" at p. 1147; Grisham _v. Philip Morris USA, Inc. , (2007) 40 Cal. 4" 623, 642). These inter-related 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). ~Ae DEFENDANT SLAKEY BROTHERS, INC.’S NOTICE OF MOTION TO DISMISS.=~ oo ODN DO GF F&F W NY 27 BENNETT, SAMUELSEN, REYNOLI LARD A PROFESSIONAL CORP, 1301 MARINA VILLAGE PARKWAY, SUITE 300 ALAMEDA, CA 94612-2941 $0) dates By filing separate lawsuits alleging the same injury and the same set of facts, plaintiffs compromise the integrity of the court system by inviting inconsistent rulings on the same issue from different courts. It cannot be denied that there are physical injuries alleged in the 2007 Complaint which are identical to the physical injuries alleged in the 2010 Complaint. Defendant SLAKEY BROTHERS, INC. therefore moves this Court in abatement to preclude plaintiffs from suing SLAKEY BROTHERS, INC. for identical injuries as alleged in the 2007 Complaint. Had plaintiffs wanted to pursue SLAKEY BROTHERS, INC. for these injuries they should have named SLAKEY BROTHERS, INC. in plaintiff ROBERT ROSS’ 2007 Complaint. B. Plaintiffs’ Claims Based Upon Asbestosis and Asbestos-Related Pleural Disease Must be Dismissed for Failure to Serve SLAKEY BROTHERS, INC. Within Three Years In bringing the same claims regarding asbestosis, asbestos-related pleural disease, asbestos-related breathing difficulties, and asbestos-related lung injuries in the 2010 Complaint, plaintiffs seek to skirt the jurisdictional requirements of Code Of Civil Procedure sections 583.210 and 583.250 which obligates 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 & Company, (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. The State of California, (1982) 139 Cal. App. 3d 72, 76-77). Here, it is indisputable that plaintiff ROBERT ROSS filed the 2007 Complaint alleging lung and breathing problems due to exposure to asbestos. Mr. Ross did not name SLAKEY BROTHERS in the 2007 Complaint, nor di he name SLAKEY BROTHERS, INC., in any subsequent “Doe” amendment. Now that it is too late for him to pursue those claims, he brings a second action for the same injuries, as well as, additional injuries. Plaintiffs cannot circumvent the three year requirement of Code of Civil Procedure sections 582.210 and 583.250 by attempting to pursue SLAKEY BROTHERS, INC. in serial ~5- DEFENDANT SLAKEY BROTHERS, INC.’S NOTICE OF MOTION TO DISMISS.=~ oo ODN DO GF F&F W NY 27 BENNETT, SAMUELSEN, REYNOLI A PROFESSIONAL CORP, 1301 MARINA VILLAGE PARKWAY, SUITE 300 ALAMEDA, CA 94612-2941 $0) dates litigation. C. Plaintiffs Are Barred from Naming SLAKEY BROTHERS, INC. as a Defendant at this Late Stage Based Upon the Doctrine of Laches When a plaintiff unreasonably delays in seeking to amend his complaint, causing specific prejudice to the defendant, the court has the discretion to deny leave to amend to substitute the names of any Doe defendant under the doctrine of laches. Plaintiffs here have failed to exercise due diligence and unreasonably delayed in naming SLAKEY BROTHERS, INC., as a defendant in the 2007 Complaint. Plaintiffs are, therefore, attempting to bring SLAKEY BROTHERS, INC. into this litigation more than three years later through a second lawsuit. The second lawsuit clearly is a shame to avoid the clear intent of the law and Plaintiffs should not be permitted to maintain their claims of asbestosis and asbestos-related pleural disease. D. Plaintiff JEAN ROSS’ Loss of Consortium Claim is Barred by the Statute of Limitations under Code of Civil Procedure section 335.1 To the extent that plaintiff JEAN ROSS loss of consortium claim is based upon her husband’s alleged asbestosis and other lung injuries, those claims are barred by the applicable statute of limitations. In Uram_v. Abex Corp, (199)) 217 Cal. App. 3d 1425, the plaintiffs 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. (Uram_v. Abex Corp., 217 Cal App 3d at 1436-38). The Uram court held that the two-year statute of limitations under former Code of Civil Procedure section 340, subdivision 3 (now Section 335.1) applies to claims for loss of consortium. (Uram v. Abex Corp., 217 Cal App 3d at 1436-38). Code of Civil Procedure section 335.1 states that the priod for commencement of a loss of consortium claim must be within two years for injury to an individual caused by the wrongful act or neglect of another. -6- DEFENDANT SLAKEY BROTHERS, INC.’S NOTICE OF MOTION TO DISMISS.=~ oo ODN DO GF F&F W NY 27 BENNETT, SAMUELSEN, REYNOLI ALL A PROFESSIONAL CORP, 1301 MARINA VILLAGE PARKWAY, SUITE 300 ALAMEDA, CA 94612-2941 $0) dates Mr. Ross first started his asbestos litigation by filing his 2007 Complaint for his asbestos-related injuries. Mrs. Ross was nota party to the 2007 Complaint and only just filed her loss of consortium in the 2010 Complaint, well past the permissible date under the Code of Civil Procedure section 335.1. Mrs. Ross’ loss of consortium claim, if any, shouid therefore be limited solely to plaintiff ROBERT ROSS’ alleged colon cancer claims. CONCLUSION For the foregoing reasons, defendant SLAKEY BROTHERS, INC. respectfully requests that this Court dismiss those portions of the 2010 Complaint relating to plaintiff ROBERT ROSS’ asbestosis, asbestos-related breathing difficulties, asbestos-related pleural disease and/or other lung damage, as well as the similarly associated loss of consortium claims. DATED: February 3, 2012 BENNETT, SAMUELSEN, REYNOLDS & ALLARD BY /s/_ Lauren E, Powe Lauren E. Powe Attorneys for Defendant SLAKEY BROTHERS, INC. ~7- DEFENDANT SLAKEY BROTHERS, INC.’S NOTICE OF MOTION TO DISMISS.