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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Gordon & Rees LLP 101 West Broadway, Suite 2000 San Diego, CA 92101 Cc Oem YD KR WH BBW = YP wR YP YN YW NN RD Rm CP A HM FB BW YM & SG BG wom WN DH BF WKH & ROGER M. MANSUKHANT, ESQ. (SBN 164463) SHARIL WEINTRAUB, ESQ. (SBN 195250) ANA R. HARTMAN, ESQ. (SBN 259399) ELECTRONICALLY GORDON & REES LLP FILED 101 W. Broadway, Suite 2000 Superior Court of California, San Diego, CA 92101 County of San Francisco Telephone: (619) 696-6700 OCT 21 2011 Facsimile: (619) 696-7124 Clerk of the Court BY: ANNIE PASCUAL Attorneys for Defendant Deputy Clerk MARSHCO AUTO PARTS, INC. SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO ROBERT ROSS and JEAN ROSS, CASE NO. CGC-10-275731 Plaintiffs, Complaint Filed: December 17, 2010 DEFENDANT MARSHCO AUTO PARTS, INC."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 Date: November 17, 2011 Time: 9:30 a.m. Dept.: 503 Judge: Hon. Teri L. Jackson ¥S. C.C. MOORE & CO, ENGINEERS; Defendants as Reflected on Exhibit 1 attached to the Summary Complaint herein; and DOES 1-8500. Defendants. Nae ee ae ee Set et le et! ee Set ee 1 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 Code of Civil Procedure sections 335.1, 583.210 and 583.250. fil -L- DEF, MARSHCO'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISS PLAINTIFF'S CLAIMS ARISING FROM THE ALLEGED ASBESTOSIS, ASBESTOS-RELATED PLEURAL DISEASE, AND OTHER LUNG INJURIESGordon & Rees LLP 101 West Broadway, Suite 2000 San Diego, CA 92101 Defendant Marshco Auto Parts, Inc. (“Marshco”) respectfully moves this Court to dismiss Plaintiffs claims Case No. CGC-10-275731 arising from Plaintiff Robert Ross’ asbestosis and asbestosis-related pleura! disease because Plaintiffs already have a pending, pre- existing personal injury lawsuit based upon the same injuries (San Francisco County Superior Court case no. CGC-07-274099) (“2007 Complaint”). 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, i.e., filing of multiple law suits to recover for the same injury. Accordingly, the Court should dismiss Plaintiffs’ claims for and relating to asbestosis, asbestos-related pleural disease, and breathing difficulties and other lung damage. Il. STATEMENT OF FACTS A. The 2007 Complaint for Asbestos-Related Personal Injuries On March 5, 2007, Plaintiff Robert Ross (“Ross”) filed the personal injury-related 2007 Complaint for injuries he alleged were caused by exposure to asbestos and named various and numerous defendants including 8,500 “Does”. (Declaration of Shari 1. Weintraub (“Weintraub Decl.”) at § 2; Exhibit (“Exh.”) A attached to Weintraub Dec!!.) Marshco was not named in the 2007 Complaint or in any subsequent amended to the 2007 Complaint. (Weintraub Decl., at 4 3; Exhs. A, B.) In 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, and increased risk of developing mesothelioma, lung cancer and various other cancers.” (Exh. A, at p. 27:12-16.) Ross also alleged that he was diagnosed with asbestos-related pleural disease on or about May 2006. (/d.) Plaintiff Jean Ross was not a party to the 2007 Complaint. (See Exhs. A, B.} B. The 2010 Ross Complaint for Asbestos-Related Personal Injuries On December 17, 2010, over 3-1/2 years after the filing of the 2007 Complaint, Ross ' AH Exhibits are attached to the Weintraub Declaration. DEF, MARSHCO’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISS PLAINTIFF'S CLAIMS ARISING FROM THE ALLEGED ASBESTOSIS, ASBESTOS-RELATED PLEURAL DISEASE, AND OTHER LUNG INJURIESGordon & Rees LLP 101 West Broadway, Suite 2000 San Diego, CA 92101 filed a second personal injury asbestos-related lawsuit (“2010 Complaint”). (Weintraub Decl., at 4/4; Exh. C.) In the 2010 Complaint, Ross alleges that his “...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. 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.” (Exh. C, at p. 41:3-6.) Both the 2007 Complaint and the 2010 Complaint seek redress for the same primary right ~ asbestos-related pleural disease, asbestos-related breathing difficulties, and/or other lung damages. By doing so, Plaintiffs have violated the rule against splitting a cause of action and those claims based upon asbestos-related pleural disease, asbestos-related breathing difficulties, and/or other lung damage must be dismissed from Plaintiffs’ 2010 Complaint. lil, 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.4" 666, 681.) 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 nile against splitting a cause of action. (id, at p. 681 (intemal citations omitted); see also Hamilton v. Asbestos Corp., Ltd. (2000) 22 Cal.4" 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 & -3- DEF, MARSHCO’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISS PLAINTIFF'S CLAIMS ARISING FROM THE ALLEGED ASBESTOSIS, ASBESTOS-RELATED PLEURAL DISEASE, AND OTHER LUNG INJURIESGordon & Rees LLP 101 West Broadway, Suite 2000 San Diego, CA 92101 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 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. 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.4" at p. 1147; Grisham y. 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.) 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. Marshco therefore moves this Court in abatement to preclude Plaintiffs from suing Marsheo for identical injuries as alleged in the 2007 Complaint. Had Plaintiffs wanted to pursue Marshco for these injuries they should have name Marshco in their 2007 Complaint. B. Plaintiffs’ Claims Based Upon Asbestosis and Asbestos-Related Pleural Disease Mast be Dismissed for Failure to Serve Marshco Within Three Years In bringing the same claims regarding asbestos-related pleural plaques, asbestosis, -~4- DEF. MARSHCO’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISS PLAINTIFF'S CLAIMS ARISING FROM THE ALLEGED ASBESTOSIS, ASBESTOS-RELATED PLEURAL DISEASE, AND OTHER LUNG INJURIES.Gordon & Rees LLP 101 West Broadway, Suite 2000 San Diego, CA 92101 breathing problems and asbestos-related lung injuries in the 2010 Complaint, Plaintiff seek to skirt the jurisdictional requirements of Code of Civil Procedure sections 583.210 and 583.250 which obligate Plaintiffs to serve ail 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 Ross filed the 2007 Complaint alleging tung and breathing problems due to exposure to asbestos. (Exh. A.) Ross did not name Marshco in the 2007 Complaint. (/d.) Nor did Ross name Marshco in any subsequent “Doe” Amendment. (Exh. B.) Because it was too late in December 2010 for Ross to do so legally, he (and his wife} filed a second lawsuit 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 383.250 by attempting to pursue Marshco in serial litigation. Cc. Plaintiffs Are Barred from Naming Marshco 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 true names of any Does defendant under the doctrine of laches. Plaintiffs here have failed to exercise due diligence and unreasonably delayed naming Marshco as a defendant in the 2007 Complaint. Plaintiffs are, therefore, attempting to bring Marshco 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. 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 -5- DEF. MARSHCO’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISS PLAINTIFF'S. CLAIMS ARISING FROM THE ALLEGED ASBESTOSIS, ASBESTOS-RELATED PLEURAL DISEASE, AND OTHER LUNG INJURIES2 3 4 5 6 7 8 9 10 11 2 852 15 Ege Osa 16 zy 18 19 20 21 22 23 24 25 26 27 28 ERCAM/10577267109694230.1 husband’s alleged asbestosis and other and other lung injuries, those claims are barred by the applicable statute of limitations. In Uram vy. 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. (/d., 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. Ross commenced is asbestos litigation in 2007 with the filing of the 2007 Complaint for his asbestos-related injuries. Plaintiff Jean Ross was not a party to that lawsuit and only just filed the claim for loss of consortium in the 2010 Complaint, well past the permissible date under Code of Civil Procedure section 335.1. Plaintiff Jean Ross’ loss of consortium claim, if any, should therefore be limited solely to Ross’ alleged colon cancer claims. I¥, CONCLUSION For the foregoing reasons, Marshco respectfully requests that this Court dismiss those portions of the 2010 Complaint relating to Ross’ asbestosis, breathing difficulties, asbestos- related pleural disease and/or other lung damage; as well as the similarly associated loss of| consortium claims. Dated: October Zl, 2011 GORDON & REES LLP By: “Ra \. rb Roger M. Mansukhani Shari I. Weintraub Ana R. Hartman Attorneys For Defendant MARSHCO AUTO PARTS, INC. -6- DEF, MARSHCO’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISS PLAINTIFF'S CLAIMS ARISING FROM THE ALLEGED ASBESTOSIS, ASBESTOS-RELATED PLEURAL DISEASE, AND OTHER LUNG INJURIES