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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Selman Breitman LLP ATTORNEYS AT LAW 28 1 $$4.3054% MARK A. LOVE (SBN 162028), mlove@selmanbreitman.com RHONDA L. WOO (SBN 168374), ELECTRONICALLY rwoo@eselmanbreitman.com FILED SELMAN BREITMAN LLP Superior Court of California, 33 New Montgomery, Sixth Floor County of San Francisco San Francisco, CA 94105 OCT 24 2011 Telephone: (415) 979-0400 Clerk of the Court Facsimile: (415) 979-2099 BY: JUANITA D. MURPHY Deputy Clerk Attormeys for Defendant ROUNTREE PLUMBING & HEATING INC. SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO- UNLIMITED JURISDICTION ROBERT ROSS, CASE NO. CGC-07-274099 Plaintiff, Date : November 10, 2011 Time : 9:30am. v. Dept. : 503 ; dudge : Hon. Teri L. Jackson ASBESTOS DEFENDANTS, | Complaint Filed =: March 5, 2007 Defendant. Trial Date : May 21, 2012 ae a | ROBERT ROSS and JEAN ROSS, CASE NO, CGC-10-275731 Plaintiffs, DEFENDANT ROUNTREE PLUMBING & HEATING INC.'S OPPOSITION TO ve PLAENTIFES' MOTION FOR ORDER CONSOLIDATING ACTIONS FOR ALL C.C. MOORE & CO. ENGINEERS, et al., PURPOSES INCLUDING TRIAL Defendant. Date =: November 10, 2011 i Time : 9:30am. Dept. : 503 Judge : Hon. Teri L. Jackson Complaint Filed =: December 17, 2010 Trial Date : No trial date set i. INFRODUCTION Plaintiff Robert Ross filed Robert Ross v. Asbestos Defendants, San Francisco Superior Court Case No. CGC-07-274099 ("Ross I") on March 5, 2007, which was a living asbestos-related pleural plaque and asbestosis case. On December 17, 2010, plaintiffs Robert and Jean Ross filed the above captioned action, which is a living colon cancer case 1 DEFENDANT ROUNTREE PLUMBING & HEATING INC-S OPPOSITION TO PLAINTIFFS" MOTION FOR ORDER CONSOHIDATING ACTIONS FOR ALL PURPOSES INCLUDING RIALun sap Selman Breitman Lip ATTORNEYS AT LAW BATE a54.3n545 ("Ross II"), wherein plaintiff Robert Ross also alleged asbestosis and asbestos-related pleural disease. Plaintiffs would like the Court to believe that Ross I and Ross I are "virtually identical, involving common witnesses, medical evidence and testimony." See plaintiffs’ Memorandum of Points and Authorities in Support of Plaintiffs’ Motion for Order Consolidating Actions for All Purposes including Trial, 3:13. However, if the cases were virtually identical, plaintiffs failed to explain, among other things, why there is not a complete overlap of defendants in both Ross | and Ross II and why a whole host of defendants have filed or joined in co-defendants' motions to dismiss claims arising from asbestos-related pleural plaques and asbestosis from Ross II. Plaintiffs also contend that consolidation will not cause prejudice to the defendants in Ross [ because supplemental interrogatories and medical records regarding the colon cancer diagnosis were provided to the defendants in Ross I on December 14, 2010. /d. at 2:12-15. Plaintiffs fail to address the prejudice to the defendants in Ross IT should the Court consolidate Ross T with Ross I. ROUNTREE is a defendant in Ross II only. ROUNTREE objects to the consolidation because: 1) consolidation would make ROUNTREF's prior motion to dismiss plaintiffs’ claims arising from alleged asbestosis, asbestos-related pleural discase, and other lung injuries in Ross H and subsequent acknowledgement and dismissal by plaintiffs in Ross I meaningless; 2) evidence of asbestos-related pleural plaques and asbestosis is completely irrelevant in a colon cancer case because, among other things, they do not tend to prove that Mr. Ross' colon cancer was caused by asbestos; 3) will cause jury confusion should plaintiffs be allowed to pursue asbestos-related pleural plaques and ashestosis as to a minority of defendants, if any, and not as to a majority, if not all defendants in Ross [{: and 4) ROUNTREE was not a defendant in Ross I and did not appear in Ross Hl until February 2011, wherein Ross | already has a trial date of May 21, 2012, which would appear to be outside of the 5-year statute to prosecute Ross 1. ROUNTREE respectfully requests that the Court deny plaintiffs! request to consolidate Ross I with Ross I. In the alternative, ROUNTREE requests that should the 2 se = ~ eee DEPENDANT ROUNTREE PLUMBING & HEATING INC'S OPPOSITION TO PLAINTIFES MOTION FOR ORDER CONSOLIDATING ACTIONS FOR ALI. PURPOSES INCLUDING TRIALATTORNEYS AT LAW Selman Breitman Lip 28 BRAT) ASA, IOSAR Court consolidate Ross I with Ross ] that ROUNTREE be severed and tried separately pursuant to California Cade of Civil Procedure §1048(b). Th. STATEMENT OF FACT Plaintiff Robert Ross filed Robert Ross v. Asbestos Defendants, San Francisco Superior Court Case No. CGC-07-274099 ("Ross I") on March 5, 2007, which was a living asbestos-related pleural disease and asbestosis case. See Declaration of Rhonda L. Woo ("Woo Decl."), Exhibit A, 27:14-16. On December 17, 2010 ("Ross IT"), plaintiff filed a living colon cancer case, wherein plaintiff also alleged asbestosis and asbestos-related pleural disease. See Woo Decl., Exhibit B, 41:3-6. As defendant ROUNTREE PLUMBING & HEATING, INC. ("ROUNTREE") was never named or served in Ross I, ROUNTREE filed a motion to dismiss plaintiffs' claims arising from alleged ashestosis, asbestos-related pleural discase, and other lung injuries on September 19, 2011. See Woo Decl., Exhibits C and D. In response to ROUNTREE's motion, plaintiffs dismissed their claims of asbestosis and asbestos-related pleural disease in Ross Il as to ROUNTREE only on September 29, 2011. See Woo Deel., Exhibit E. The following defendants, among others, have either filed their own motions or have joined in the motion of co-defendants to dismiss plaintiffs' claims arising from alleged asbestosis and asbestos-related pleural disease in Ross I: 1) A. Teichert & Son, Inc.; 2) ACCO Engineered Systesm, Inc.; 3) Bell Products, Inc.: 4) Bragg Investment Company, Inc.; 5) California Drywall Co.: 6) Critchficld Mechanical, Inc.; 7) Harold Beasley Plumbing & Heating, Inc.: 8) Domco Products Texas Inc.; 9) D.W. Nicholson Corporation; 10) Foley Electric, Inc.; 11) General Mills. Inc.; 12) Joseph Bruno Sheet Metal Co., Inc.; 13) Kentile Floors, Inc.: 14) Marschco Auto Parts, Inc.; 15) Pribuss Engineering. Inc.; 16) 21) Swinerton Builders; 16) Temporary Plant Cleaners, Inc.: 17) and Van Mulder Sheet Metal, Inc. See Woo Decl., Exhibits F to X. inclusive. HE ARGUMENT Plaintiffs’ reliance upon California Code of Civil Procedure §377.62 in support of their motion to consolidate is misplaced because this is not a motion to consolidate a prior DEFENDANT ROUNTREE PLUMBING & HEATING INC'S OPPOSITION TO PLAINTIEFS' MOTION FOR ORDER CONSOLIDATING ACTIONS FOR ALL PURPOSES INCLUDING TRIAL& e so & = u Me cn c oC & o na ATTORNEYS AT LAW bo nA Ww & Th ASA 30343 personal injury action with a subsequent wrongful death action. See California Civil Procedure code §§377.30, 377.31, 377.60. Rather, plaintiffs seek to consolidate Ross 1, a living asbestos-related pleural plaque and asbestosis case with Ross II, a living colon cancer case, with allegations of asbestos-related pleural plaque and asbestosis, wherein plaintiffs are unable to pursue the asbestos-related pleural plaque and asbestosis claims in Ross Tf against various defendants, including ROUNTREE. Plaintiffs’ reliance upon California Code of Civil Procedure §1048(a) is also misplaced. Plaintiffs contend that both actions involve commons question of law and fact. See plaintiffs’ Memorandum of Points and Authorities in Support of Plaintiffs’ Motion for Order Consolidating Actions for All Purposes including Trial, 2:20. If true, why would there not be a significant overlap of defendants in Ross | and Ross If and why would plaintiffs be unable to pursue a claim for asbestos-related pleural plaques and asbestosis against a whole host of defendants, including ROUNTREE? Plaintiffs contend that consolidation would avoid duplication of time and effort. dd. at 3:5-6. However, consolidation would not avoid duplication as there are a great many defendants, including ROUNTREE, wherein plaintiffs can not pursuc a claim for asbestos-related pleural plaques and asbestosis. See Woo Decl. Exhibits C to X, inclusive. Consolidation of Ross I and Ross I] will not enhance trial court efficiency and will lead to actual prejudice to ROUNTREE, among other defendants, because plaintiffs dismissed their claims regarding asbestos-related pleural plaques and asbestosis as to ROUNTREP. Consolidating the two cases will be inefficient and prejudicial to ROUNTREE because, among other things: 1) consolidation would make ROUNTREE's prior motion to dismiss plaintiffs‘ claims arising from alleged asbestosis, asbestos-related pleural disease, and other lung injuries in Ross I and subsequent acknowledgment and dismissal by plaintiffs in Ross I meaningless; 2} evidence of asbestos-related pleural plaques and asbestosis is completely irrelevant in a colon cancer case because, among other things, they do not tend to prove that Mr. Ross' colon cancer was caused by asbestos; 3) will cause jury confusion should plaintiffs be allowed to pursue asbestos-related pleural DEFENDANT ROUNTREE PLUMBING & HEATING INC.S OPPOSITION TO PT -AINTIFFS’ MOTION FOR ORDER CONSOHIDATING ACTIONS FOR ALL PURPOSES INCLUDING TRIAL.ATTORNEYS AT LAW Selman Breitman LLP plaques and asbestosis as to a minority of defendants, if any, and not as to a majority, if not all defendants in Ross II: and 4) ROUNTREE was not a defendant in Ross I and did not appear in Ross If until February 2011, wherein Ross I already has a trial date of May 21. 2012, which would appear to be outside of the 5-year statute to prosecute Ross I. Rather, the fact that plaintiffs have dismissed claims regarding asbestos-related pleural plaques and asbestosis in Ross I as to ROUNTREE supports ROUNTREE's request, should the Court decide to consolidate Ross T and Ross II, that ROUNTREE be severed pursuant to California Code of Civil Procedure §1048(b). IV. CONCLUSION For the foregoing reasons, ROUNTREE respectfully requests that the Court deny plaintiffs’ request to consolidate Ross I with Ross Tf. In the alternative, ROUNTREE respectfully requests that should the Court consolidate Ross I with Ross II that ROUNTREE be severed and tried separately pursuant to California Code of Civil Procedure §1048(b). DATED: October 24, 2011 SELMAN BREITMAN LLP By: /s ¢ RHONDA L. WOO MARK A. LOVE RHONDA L. WOO Attorneys for Defendant ROUNTREE PLUMBING & HEATING INC. “DPEENDANT ROUNTREF PLUMBING &TIEATING INC. S OPPOSITION TO PLAINTIFFS MOTION FOR ORDER CONSOLIDATING ACTIONS FOR ALI PURPOSES INCLUDING TRIAL