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
BRAYTONSPURCELL LLP ATTORNEYS AT LAW 222 RUSH LANDING ROAD PO BOX 6169 NOVATO, CALIFORNIA 94948-6169 (41S) 898-1555 eC oe RA A RB YN NY NM NR NM NN me ee Re ee So WR FON = SO we aw DH BW NY & oS DAVID R. DONADIO, ESQ., S.B. #154436 NANCY T. WILLIAMS, ESQ., S.B. #201095 ELECTRONICALLY BRAYTON?PURCELL LLP LLP Attorneys at Law F ILE D 222 Rush Landing Road Superior Court of California, P.O, Box 6169 County of San Francisco Novato, California 94948-6169 APR 18 2011 Clerk of the Court BY: VANESSA WU Deputy Clerlg G5) § 898-1555 entative Ruling Contest Email: contestasbestosTR@b law, Attorneys for Plaintiffs SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO ROBERT ROSS and JEAN ROSS, ASBESTOS No. CGC-10-275731 Plaintiffs, 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER GRANTING LEAVE TO FILE SECOND AMENDED COMPLAINT ) VS. C.C. MOORE & CO. ENGINEERS; Defendants as Reflected on Exhibit | attached to the Summary Complaint herein; and DOES 1-8500. Date: May 12, 2011 Time: 9:30 a.m. Room: 220- The Hon. Harold E. Kahn Trial Date: N/A Filing Date: May 20, 2010 L STATEMENT OF FACTS Plaintiffs filed this asbestos personal injury action on May 20, 2010, claiming injuries and damages as a result of his asbestos-related lung disease. Defendants COLLINS ELECTRICAL COMPANY, INC., filed a Demurrer to the complaint, and on March 3, 2011, this court granted the demurrer allowing plaintiffs leave to file an Amended Complaint. Immediately, a First Amended Complaint was drafted and filed with the court on March 14, 2011. Just prior to the hearing on plaintiff's demurrer on March 3, 2011, plaintiffs filed Doe ‘Amendments on March 2, 2011 (adding to Exhbit B (LONE STAR INDUSTRIES, INC.); adding to Exhibits B and C (CONSOLIDATED INSULATION, INC.; WRIGHT SCHUCHART HARBOR COMPANY; ALLIED FIRE PROTECTION; PRIBUSS ENGINEERING, INC.; ADVANCE MECHANICAL KNiurecht936ONphAPRAMTALZ AMD CMP xp 1 {ORD} MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER GRANTING LEAVE TO FILE SECOND AMENDED COMPLAINTCo em WT DA RB YW BY RR BN YN NR DB Rm meme eI FAR DY = SF Owe RADAR HH HS CONTRACTORS, INC.; COSCO FIRE PROTECTION, INC.; CAHILL CONSTRUCTION SERVICES, INC.; DORN REFRIGERATION AND AIR CONDITIONING; MARINE ENGINEERING AND SUPPLY COMPANY; VAN-MULDER SHEET METAL, INC.); and adding to Exhibit C for premises liability (TEXACO, INC.)). The filed Doe Amendments along with the Order granting leave to add the defendants to the action, were provided to our firm’s service department and all were served on March 18, 2011. Due to an overlap in service and our data reports being updated and the drafting of the First Amended complaint, the recently added defendants contained in the Doe Amendments filed March 2, 2011, were inadvertently omitted from the First Amended Complaint filed on March 14, 2011. Upon preparing the amended complaint for service, the mistake was discovered, and plaintiffs now wish to file a Second Amended Complaint to correctly include all proper parties to the action. Allowing the filing of 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. IL LEGAL DISCUSSION Code of Civil Procedure section 473, provides in pertinent part: The court may, in furtherance of justice, and on any ferms as may The cour may likewise i ts disereGon, after Rote 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. Kildares egy BeAr? AMD CMP 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER GRANTING LEAVE TO FILE SECON AMENDED COMPLAINTre D0 RPMI HW FF WN 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. All allegations in the proposed Second Amended Complaint are based upon the same facts as alleged in the original Complaint: plaintiff ROBERT ROSS' asbestos-related lung disease due to exposure to asbestos and asbestos-containing products. Thus, the amendment should be allowed in the furtherance of justice so that plaintiffs may properly present their case. (See Seamans, 78 Cal. App.2d at 826.) In the interests of preserving environmental resources, plaintiffs request that the Second Amended Complaint be deemed served on all defendants who have previously appeared herein, as of the date of the granting of the motion to amend (as defendants have been served with a cop’ of the Second Amended Complaint as Exhibit A to the Declaration of Nancy T. Williams, filed herewith). : Additionally, C.C.P. § 128(a)(3) provides for the orderly conduct of proceedings before the Court and therefore gives the court discretion to deem the amended complaint as served on all defendants who previously appeared in this action. Plaintiffs move the Court for this further relief on the grounds that it is a waste of resources to re-serve the amended complaint. ‘This is especially true when plaintiffs routinely stipulate with defendants that their original answer can be used as their answer to the amended complaint. Plaintiffs urge the court in these environmentally sensitive times that additional enormous environmental resources are also saved by granting plaintiffs’ relief. Finally, the Court is not missing out on initial appearance fees, because all newly served defendants will still need to pay when making their initial appearance. There is no additional fee required when plaintiffs amend a complaint or when an already served defendant is re-served. ONCLUSION In view of the foregoing, plaintiffs respectfully request the Motion for Order Granting Leave to File a Second Amended Complaint be granted and that the Second Amended Complaint be deemed served on all defendants who have previously appeared herein, as of the date of the granting of the Motion to Amend. Asjured\i 930i ldeBA-MTA-2. AMD CMP. wed 3 (ORD) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER GRANTING LEAVE TO FILE SECOND AMENDED COMPLAINT“ 10 Co me ND HW BW NY Plaintiffs will stipulate that any defendant's previous answer to the complaint will stand as the answer to the Second Amended Complaint. Defendants that wish to so stipulate are invited to sign and return to plaintiffs’ counsel the form of stipulation attached hereto as Exhibit A. Date S// b/y Respectfully submitted, LLP ancy Attorneys for Plaintiffs K.Alsjured\ So40\pldP&AcMTA-2 AMD CMP.vepd 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER GRANTING LEAVE TO FILE SECOND AMENDED COMPLAINT:EXHIBIT ARYN YN RK KR KR Dm eI Ah FYB HF SO we RAHA FF YW KY Se OD ow ND HW Bw HD DAVID R. DONADIO, ESQ.., S.B. #154436 BRAYTON*PURCELL LLP LLP Attorneys at Law 222 Rush Landing Road P.O. Box 6169 Novato, California 94948-6169 (415) 898-1555 Attorneys for Plaintiffs SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO ROBERT ROSS and JEAN ROSS, ) ASBESTOS No. CGC-10-275731 Plaintiffs, ) STIPULATION THAT ANSWER TO vs. ORIGINAL COMPLAINT MAY STAND AS ANSWER TO SECOND AMENDED C.C. MOORE & CO. ENGINEERS, COMPLAINT Defendants as Reflected on Exhibit 1 } attached to the Summary Complaint herein; and DOES 1-8500. IT IS HEREBY STIPULATED by and between plaintiffs and defendant below indicated, through their respective attorneys, that defendant's answer to the original Complaint herein may stand as defendant's answer to the Second Amended Complaint. All new matters are deemed controverted. Dated: BRAYTON®PURCELL LLP LLP LLP By: David R. Donadio Attorneys for Plaintiffs Dated: By: Attorneys for Defendant STIPULATION THAT ANSWER TO ORIGINAL COMPLAINT MAY STAND AS ANSWER TO SECOND AMENDED COMPLAINT