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

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SONJA E. BLOMQUIST, SBN #099341, sblomquist@lowball.com
PAMELA Y. LOUIE, SBN #259391, plouie@lowball.com

LOW, BALL & LYNCH ELECTRONICALLY

505 Montgomery Street, 7' Floor

San Francisco, California 94111-2584 s F I L ED .

Telephone (415) 981-6630 County of San Francisce
imile (415) 399-1506

Facsimile (is) DEC 15 2011

Attorneys for Defendant Clerk of the Court

GIAMPOLINI & COMPANY BY: WILLIAM TRUPEK

Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO

ROBERT ROSS and JEAN ROSS, Case No. CGC-10-275731
Plaintiffs, DEFENDANT GIAMPOLINI &
y COMPANY'S MEMORANDUM OF

POINTS AND AUTHORITIES IN
SUPPORT OF ITS MOTION TO
DISMISS PLAINTIFFS' CLAIMS
ARISING FROM THE ALLEGED
ASBESTOSIS, ASBESTOS-RELATED
PLEURAL DISEASE, AND OTHER
LUNG INJURIES

C.C. MOORE & CO. ENGINEERS;
Defendants as Reflected on Exhibit I
attached to the Summary Complaint herein;
and DOES 1-8500,

Defendants.

Date: January 18, 2012
Time: 9:30 a.m.

Dept.: 503

Judge: Hon. Teri L. Jackson

Nee eee

I. INTRODUCTION

Plaintiffs ROBERT ROSS and Jean Ross (hereinafter collectively "Plaintiffs" unless
otherwise referenced) filed serial lawsuits based upon Plaintiff Robert Ross! alleged asbestosis
and asbestos-related pleural disease. By filing serial lawsuits, Plaintiffs are attempting to
circumvent the three-year statute of limitations period in which to serve defendants under
California Code of Civil Procedure sections 335.1, 583.210 and 583.250.

Defendant GIAMPOLINI & COMPANY (“Giampolini”) respectfully moves this Court
to dismiss Plaintiffs’ claims arising from Mr. Ross’ asbestosis and asbestos-related pleural

disease because Plaintiffs already have a pending, pre-existing personal injury lawsuit based
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upon the same injuries (San Francisco County Superior Court Case No. CGC-07-274099).
Because Plaintiff Robert Ross' claims are time-barred, Plaintiff Jean Ross’ claim for loss of
consortium is also time-barred. California law precludes “splitting” a cause of action, ie., filing
of multiple lawsuits to recover for the same injury. Accordingly, the Court should dismiss
Plaintiffs’ claims for and relating to asbestosis, asbestos-related pleural disease, asbestos-related
breathing difficulties, and other lung damage.
Hi. «STATEMENT OF FACTS

A. The 2007 Complaint for Asbestos-Related Personal Injuries

On March 5, 2007, Plaintiff Robert Ross filed the personal injury-related complaint
(2007 Complaint”) for injuries he alleged were caused by exposure to asbestos and named
various and numerous defendants including 8,500 Does. (Declaration of Pamela Y. Louie
("Louie Decl.") at 43; Exhibit A attached to Louie Decl.) Giampolini was not named in the 2007
Complaint or in any subsequent amendments to the 2007 Complaint. (Louie Decl., at 413 and 4;
Exhibits A, B.)

Tn the 2007 Complaint, Ross alleged 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..." (Louie Decl., at 13; Exhibit A at p. 27:12-16). Mr. Ross also alleged that he was
diagnosed with asbestos-related pleural disease on or about May 2006. (Louie Decl., Exhibit A
at p. 27:12-16). Jean Ross was not a party to the 2007 Complaint. (See Exhibits A, B.). Mr.
Ross’ 2007 action for asbestosis, asbestos-related pleural disease, asbestos-related breathing
difficulties, and other lung damage is still pending with this Court.

B. The 2010 Ross Compiaint for Asbestos-Related Personal Injuries

On December 17, 2010, over three and a half years after the filing of the 2007
Complaint, Plaintiffs filed a second personal injury asbestos-related lawsuit ("2010
Complaint"). (Louie Decl., at §5; Exhibit C.) In the 2010 Complaint, 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 lung damage.
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GIAMPOLINI & CO.’S MEMO OF POINTS & AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISS
\Server7\GEN-INS\2040\SF1005\Pid\Motion to Dismiss\MPA.doc.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 C, at p. 41:3-6.)

Both the 2007 Complaint and the 2010 Complaint seek redress for the same primary
tight - 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.

Iii. LEGAL ARGUMENT
A. Plaintiffs Are Prohibited From "Splitting" a Single Cause of Action Into

Separate/Multiple Lawsuits

By pursuing two separate lawsuits for the same injury, Plaintiffs have violated the rule
against splitting a cause of action. The primary right theory is a theory of code pleading that has
long been followed in California. California law defines a cause of action in terms of the
"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.4th 666.)

The primary right theory... provides that a "cause of action" is
comprised of a "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 indivisible: 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 a
cause of action.

(id. at p. 681 (internal citations omitted); see also Hamilton v. Asbestos Corp., Ltd., (2000) 22

Cal.4th 1127.) "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, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2011)  6:250 et

seq., p. 6-69 citing Hamilton, supra, at p. 1145.) More than one wrongful act may constitute a

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GIAMPOLINI & CO.’S MEMO OF POINTS & AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISS
‘Server \GEN-INS\2040\SF 1006\Pid Motion to Dismiss\MPA docsingle cause of action. (Burdette v. Carrier Corp., (2008) 158 Cal. App.4th 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. The 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.4th at p. 1147; Grisham v. Philip Morris USA, Inc., (2007)

40 Cal.4th 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.4th 815, 829.)

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 issues
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.
Giampolini therefore moves this Court in abatement to preclude Plaintiffs from suing
Giampolini for identical injuries as alleged in the 2007 Complaint. Had Plaintiffs wanted to
pursue Giampolini for these injuries they should have named Giampolini in their 2007
Complaint. :
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GIAMPOLINI & CO.’S MEMO OF POINTS & AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISS
\\Server”\GEN-INS\2040\SF I O06\PId\Motion to Dismiss\MPA doeB. Plaintiffs' Claims Based Upon Asbestosis and Asbestos-Related Pleural Disease
Must be Dismissed for Failure to Serve Giampolini 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 obligate 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 Mr. Ross filed the 2007 Complaint alleging lung and
breathing problems due to exposure to asbestos. Mr. Ross did not name Giampolini in the 2007
Complaint, nor did he name Giampolini 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 Giampolini in serial litigation.

C. Plaintiffs Are Barred from Naming Giampolini 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 Ieave 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 naming Giampolini as a defendant in
the 2007 Complaint. Plaintiffs are, therefore, attempting to bring Giampolini into this litigation
more than three years later through a second lawsuit. The second lawsuit clearly is a sham 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.

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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 Mrs. 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., (1990) 217 Cal.App.3d 1425, 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. (Id. at p. 1436-38.)

The Uram court held that the two-year status of limitations under former Code of Civil
Procedure section 340, subdivision 3 (now Section 335.1) applies to claims for loss of
consortium. (Uram, supra, at pp. 1436-38.)

Code of Civil Procedure section 335.1 states that the period 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.

Mr. Ross first started his asbestos litigation by filing his 2007 Complaint for his
asbestos-related injuries. Mrs. Ross was not a party to the 2007 Complaint and only just filed
her claim for loss of consortium in the 2010 Complaint, well past the permissible date under
Code of Civil Procedure section 335.1. Mrs. Ross’ loss of consortium claim, if any, should
therefore be limited solely to Mr. Ross’ alleged colon cancer claims.
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GIAMPOLINI & CO.’8 MEMO OF POINTS & AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISS
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For the foregoing reasons, Giampolini respectfully requests that this Court dismiss those

portions of the 2010 Complaint relating to Mr. 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: December 9 , 2011

By:

LOW, BALL & LYNCH

(ole ha

SONJA E. BLOMQUIST
PAMELA Y. LOUIE
Attorneys for Defendant
GIAMPOLINI & COMPANY

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GIAMPOLINI & CQ.’S MEMO OF POINTS & AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISS

\\Server7\GEN-INSW040\SF 1006\Pld\Motion to Dismiss\MPA.docRoss v. C.C. Moore & Co. Engineers, et al.
San Francisco Case No. CGC-10-275731

PROOF OF SERVICE

I am over the age of eighteen (18) years and not a party to the within action. Iam
employed at Low, Ball & Lynch, 505 Montgomery Street, 7th Floor, San Francisco, California
94111.

On the date indicated below, I served the following document DEFENDANT

GIAMPOLINI & COMPANY'S MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF ITS MOTION TO DISMISS PLAINTIFFS’ CLAIMS ARISING FROM
THE ALLEGED ASBESTOSIS, ASBESTOS-RELATED PLEURAL DISEASE, AND
OTHER LUNG INJURIES

on the listed addresses:

Brayton Purcell [ ] And All Defense Counsel

222 Rush Landing Road {SEE ATTACHED LIST]

Novato, CA 94948-6169

Telephone: 415 898-1555 { ] (Al counsel in this action (list attached)
415-898-1555 (voice) were faxed a letter advising of the documents
415-898-1247 (fax) provided Plaintiffs and an offer to provide

copies upon request. Letter enclosed.)

] (BY MAIL) I placed a true copy, enclosed in a sealed, postage paid envelope. and deposited
same for collection and mailing at San Francisco, California, following ordinary business
practices, addressed as set forth below.

] (BY PERSONAL SERVICE) I caused each such envelope to be delivered by hand to the
addressees noted above or on the attachment herein by Legal Services.

{] (BY FACSIMILE) I caused the said document to be transmitted by Facsimile transmission
to the number indicated after the addresses noted above or on the attachment herein.

] (BY OVERNIGHT COURIER) I caused each such envelope addressed to the parties to be
deposited in a box or other facility regularly maintained by the overnight courier or driver
authorized by the overnight courier to receive documents.

X] (BY E-MAIL/ELECTRONIC TRANSMISSION) I caused the said document(s) to be sent to
the person(s) at the e-mail address(es) indicated above or on the attachment herein.

Tam readily familiar with this law firm’s practice for the collection and processing of
documents for regular and certified mailing, overnight mail, personal service, electronic
transmission, and facsimile transaction, and said document(s) are deposited with the United States
Postal Service or overnight courier depository on the same day in the ordinary course of business.

I declare under penalty of perjury under the laws of the State of California that the foregoing
is true and correct. Executed at San Francisco, California on December _/4_, 2011.

Séattet- Herrera

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