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

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                                1 | MARK A. LOVE (SBN 162028),
mlove@selmanbreitman.com

2 | RHONDA L. WOO (SBN 168374), ELECTRONICALLY
rwoo@’selmanbreitman.com

3 GILLIAM F. STEWART (SBN 260070), sopek tlt ED oe
gstewart@selmanbreitman.com County of San Francisco

4 SELMAN BREITMAN LLP SEP 20 2011

33 New Montgomery, Sixth Floor

5 | San Francisco, CA 94105 Clerk of the Court
Telephone: (415) 979-0400 BY: ALISON AGB clerk
6 || Facsimile: (415) 979-2099 epuly Cle

7 Attomeys for Defendant
ROUNTREE PLUMBING & HEATING

8 INC.
9 SUPERIOR COURT OF CALIFORNIA
10 COUNTY OF SAN FRANCISCQ- UNLIMITED JURISDICTION
5 11 ROBERT ROSS and JEAN ROSS, CASE NO. CGC-10-275731
od
s 12 Plaintiff, DEFENDANT ROUNTREE PLUMBING
a 2 & HEATING INC.'S MEMORANDUM
Ss a 43 v. OF POINTS AND AUTHORITIES IN
Be SUPPORT OF ITS MOTION TO
og 14 C.C, MOORE & CO. ENGINEERS, et al., DISMISS PLAINTIFFS' CLAIMS
Ss y ARISING FROM THE ALLEGED
ma aw 15 Defendant. ASBESTOSIS, ASBESTOS-RELATED
ae _ A PLEURAL DISEASE, AND OTHER
Se 16 LUNG INJURIES
&
oO 17 Date : October 18, 2011
w~” Time : 9:30am.
18 Dept. : 220
Judge : Hon. Harold £. Kahn
19
Complaint Filed =: December 17, 2010
20 Trial Date : No trial date set
21
22
4 Plaintiffs ROBERT ROSS and JEAN ROSS (collectively, "plaintiffs") have filed
a4 serial lawsuits based upon Mr. Ross’ alleged asbestosis and asbestos-related pleural
25 disease. In doing so, plaintiffs are attempting to circumvent the three-year limitations
46 period in which to serve defendants under California Code of Civil Procedure sections
7 335.1, 583.210 and 583.250. ROUNTREE PLUMBING & HEATING INC.
28 DEFENDANT ROUNTREE PLUMBING & HEATING INC.'S MEMORANDUM OF POINTS AND

AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISS PLAINTIFFS! CLAIMS ARISING FRO}
THE ALLEGED ASBESTOSIS, ASBESTOS-RELATED PLEURAL DISEASE, AND OTHER LU
INJURIES

2M 484.2 454.3054Selman Breitman Lip
ATTORNEYS AT LAW

BEANE? 484, 20503

("Rountree") respectfully moves the court to dismiss plaintiffs claims arising from Mr.
Ross’ asbestosis and asbestos-related pleural disease as plaintiffs have a pending, pre-
existing case based upon the same injuries. Plaintiffs failed to name Rountree within three
years of commencing the pre-existing action. Instead, plaintiffs have filed a second case;
in part alleging claims based upon a newly diagnosed colon cancer, and in part re-asserting
duplicative claims based upon asbestosis and other lung injurics. With this second
complaint, plaintiffs are attempting to revive the asbestosis and asbestos-related pleural
disease claims in violation of Code of Civil Procedure sections 335.1, 583.210(a) and
583.250.
1 STATEMENT OF FACTS

A. Ross I - The 2007 Asbestos-Related Personal Injury Lawsuit

On March 5, 2007, Mr. Ross filed a complaint for asbestos-related personal injury,
naming various defendants, including 8,500 Doe defendants. (The 2007 action is hereatier
"Ross 1." Complaint for Personal Injury — Asbestos, Robert Rass v. Asbestos Defendants
(BP), San Francisco County Superior Court Case No. CGC-07-274099, attached to the
Declaration of Gilliam F. Stewart ("Stewart Decl.") as Exhibit A.) Rountree was not
named expressly in the initial Ross / complaint, nor was Rountree expressly named in any
subsequent amendment to the Rass J complaint. (Amendments to the Ross / complaint
attached to the Stewart Decl. as Exhibit B.)

In the Ross / complaint, Mr. 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 and fear of developing mesothelioma, lung cancer
and various other caneers. Plaintiff allegedly was diagnosed with asbestos-related
pleural disease on or about May 2006." (Ross / complaint, p. 27:12-16, attached to the
Stewart Decl. as Exhibit A.) Ms. Ross was nota party to Russ 1.

‘All reference to code sections refer to the California Code of Civil Procedure.

2

DEFENDANT ROUNTREE PLUMBING & HE ATING INC.'S MEMORANDUM OF POINTS AND
AUTHORITIES [N SUPPORT OF s . S' CLAIMS ARISING FROM
THE ALLEGED ASBESTOSIS, ASBESTOS- RELATED PLEURAL DISEASE, AND OTHER LUNG
INJURIESSelman Breitman Lip
ATTORNEYS AT LAW

28

2NS84.2 454.3053

B. Ross 11 The 2010 Asbestos-Related Personal Injury Lawsuit

On December 17, 2010, over three-and-a-half years after filing Ross J, Mr. Ross
filed a second asbestos-related personal injury action. (The 2010 action is hereafter "Ross
JZ." Complaint for Personal Injury Asbestos, Robert Ross and Jean Ross v. Asbestos
Defendants (BP}, San Francisco County Superior Court Case No. CGC-10-275731,
attached to Stewart Decl. as Exhibit C, served concurrently herewith.) In this complaint,
plaintiffs expressly named Rountree. (/d.)

In the Ross /7 complaint, Mr. Ross alleged 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 other lung damage. Plaintiff Robert
Ross was diagnosed with colon cancer on or about October 2010, and with asbestosis and
asbestos-related pleural disease on or about May 2009." (Ross 7 complaint, p. 41:3-6,
attached to the Stewart Decl. as Exhibit C.)

I. LEGAL ARGUMENT
A. Plaintiff ts Prohibited from "Splitting" a Single Cause of Action into

Separate Lawsuits

Under the primary right theory and its corollary, the rule against splitting a cause of
action, a plaintiff may not bring the same lawsuit twice. (See Hamilton v, Asbestos Corp.,
Ltd. (2000) 22 Cal.4th 1127, 1145-46.) "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. (/d, at 1145, quoting Crowley v. Katleman (1994) 8

Cal.4th 666, 681.) It makes no difference that the complaint asserts different legal

theories or seeks different remedies. (/d.) More than one wrongful act may invade a
3

DEFENDANT ROUNTREE PLUMBING & HEATING 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 LL
INJURIESATTORNEYS AT LAW

Selman Breitman Lie

231484.2

28

354,20543

single primary vight, in which event there is still only a single cause of action, no matter
how many separate counts are pleaded. ( See Burdetie v. Carrier Corp. (2008) 158
Cal.App.4th 1668, 1684-1685 (citing Bay Cities Paving & Grading, Inc. v. Lawyers’ Mut
dns. Co. (1993) 5 Cal 4th 854, 857-69).

In Hamilton, supra, 22 Cal Ath at 1145-1147, the California Supreme Court
addressed the issuc of splitting a single cause of action into two separate lawsuits. The
initial plaintiff in /Zamilton, Arthur Mitchell, initially filed a claim for asbestosis, Mitchel!
7. Two years later the plaintiff was diagnosed with mesothelioma and filed a second
asbestos-related claim for that injury in Mitchell I. Ud. at 1133.) The Hamilion Court
demurred on whether two diseases contravenes the rule against splitting a cause of action:
"We need not reach the question whether Mitchell had a separate primary right to be free
from each of the two diseases, asbestosis and mesothelioma,] resulting from his asbestos
exposure." (/d. at 1146.) Rountree does not assert that the alleged asbestosis and colon
cancer claims give rise to only one primary right. Rountree asserts that Ross // contains

causes of action rooted in alleged asbestosis and other lung injuries that are identical to the

causes of action rooted in the identical alleged asbestosis and other lung injuries in Ross /.

In Ross J, plaintiff alleged: "breathing difficulties, asbestosis, and/or other lung
damage, and increased risk and fear of developing mesothelioma, lung cancer and various
other cancers. Plaintiff was diagnosed with asbestos-related pleural disease on or about
May 2006." (Ross Tcomplaint, p. 27:12-16, attached to the Stewart Decl. as Exhibit A.)

In Ross II, plaintiff alleged: "breathing difficulties and/or other lung damage.
Plaintiff was diagnosed with colon cancer on or about October 2010, and with asbestosis
and asbestos-related pleural disease on or about May 2009." (Ross // complaint, p. 41:3-
6, attached to the Stewart Decl. as Exhibit C.)

The causes of action alleged in the two complaints are identical. Where the alleged
injuries are identical in Ross J and Ross 77, Rountree moves the court in abatement to

preclude plaintiff from suing Rountree for identical injuries in Ross {2 The proper case in
a 4 a -
DEF! NT ROUNTREE PILUMBING & HEATING 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
INJURIESwe

Selman Breitman Lie
ATTORNEYS AT LAW

2BIARL2 48430843

which Rountree may be sued for the asbestosis and other lung injury claims is in Ross /.

B. Plaintiffs' Claims Based Upon Asbestosis and Asbestos-Related Pleural

Disease Must Be Dismissed for Failure to Serve Rountree in within

Three Years
Plaintiff should have sued Rountree as a fictitious defendant in Ross £ Code of

Civil Procedure section 474 provides a mechanism by which a plaintiff can and in this

case, plaintiff did---include fictitious names of defendants where the plaintiffis ignorant of

any defendant's true name or identity. Under Code of Civil Procedure section 474,
plaintiffs must "actually be ignorant of the facts giving [them] a cause of action against a
defendant." (Munoz v. Purdy (1979) 91 Cal.App.3d 942, 946-947.) The lack of
knowledge of the true name of a defendant "must be real and not feigned." (Munoz, supra,
91 Cal.App.3d at 947.) Plaintiffs are not permitted to name a known defendant ina
fictitious manner in the hopes of surprising that defendant afler “evidence has been lost,
memories have faded and witnesses have disappeared." (/d.)

Meanwhile, Code of Civil Procedure section 583.210(a) states: "The summons and
complaint shall be served upon a defendant within three years after the action is
commenced against the defendant." (Emphasis added.) Section 583.210(a) further
explains that the action is commenced with the filing of the complaint. Application of the
three-year time limit is mandatory under section 583.250, and can be accomplished with a
defendant's motion to dismiss or on the court's own motion. (Code Civ. Proc., § 583.250;
Bushing v, Superior Court (1974) 12 Cal.3d 44, 50 (discussing former section 58 1a, now
583.210); Brookview Condominium Owners Association v. Heltzer Enterprises-Brookview
(1990) 218 Cal.App.3d 502, 508 (“Brookview").)

Taken together, Code of Civil Procedure sections 474, 583.210, and 583.250 allow
plaintiff three years to serve the fictitious "Doe" defendants: "From the time such a
complaint is filed, the plaintiff has three years to identify and serve the defendant.” (Jolly

v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1118; Munoz, supra at 946 ("A plaintiff has three
5

AUTHORITIES IN SUPPORT OF [TS MOTION TO DISMISS PLAINTIFFS! CLAIMS ARIS
THE ALLEGED ASBESTOSIS, ASBESTOS-RELATED PLEURAL DISEASE, AND OT!

INJURIESNv

Selman Breitman Lip
ATTORNEYS AT LAW

231984,2 454.3054

years under section 581a, subdivision (a}[, which is now section $83.210,] after the
commencement of the action to discover the identity of the unknown defendant and effect
service of the complaint"); Mfike Silverman & Assoc, v. Drai (C.D. Cal. 1987) 659 F Supp.
741, 744 ("[A] plaintiffs failure to identify and serve fictitious defendants within three
years of the date the complaint is filed bars any later action against those defendants").)

In this case, the Ross / complaint was filed on March 5, 2007 but plaintiff never
named and served Rountree in Ross /. This violated the prohibition against splitting a
cause of action, discussed supra. It was not until more than three-and-one-half years later,
in December 2010, when plaintiffs served Rountree with the Ross // complaint. The
failure of plaintiffs to name Rountree in Ross / and serve Rountree within three years of
commencing Ross 7 mandates dismissal of the claims rooted in the identical injuries
alleged in Ross I.

Plaintiffs may argue that they were genuinely ignorant of the identity of Rountree
until filing the Ross // complaint on December 17, 2010, However, plaintiffs! ignorance of
Rountree, be it real, mistaken, or feigned, does not matter. Ignorance merely permits the
naming ofa fictitious defendant under Code of Civil Procedure section 474. Ignorance
does not permit plaintiffs to avoid the limitations period under Code of Civil Procedure
section 583.210. Plaintiffs cannot be permitted to circumvent the three-year limitations
period in which to name and serve Doe defendants. Their failure to name Rountree in
Ross [bars plaintiffs from now attempting to pursue Rountree in subsequent, serial
litigation.

Plaintiffs may also attempt to argue that because Rountree has made a general
appearance and participated in pretrial discovery for several months, Rountree has waived
the relief of Code of Civil Procedure section 583.210. However, general appearance or
not, "[a]s the Supreme Court has continually held. , . dismissal is mandatory because 'a
gencral appearance afrer the three years had run did not operate to deprive a defendant of

his right to a dismissal.’ [citation]" (Brookview, supra, 218 Cal.App.3d at 509 (quoting
oe 6

ANT ROUNTREE PLUMBING & HEATING MEMORANDUM OF POINTS AY
AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISS PLAINTIFFS’ CLAIMS ARISING FROM

THE ALLEGED ASBESTOSIS, ASBESTOS-RELATED PLEURAL DISEASE, AND OTHER LLNG
INJURIESSelman Breitman Lip
ATTORNEYS AT LAW

2NARE2 484,30543

Bushing v. Superior Court (1974) 12 Cal.3d 44, 52, italics in Bushing original).) "To
prevent dismissal, any claimed general appearance must have occurred within the
mandatory three-year period. An appearance made thereafier does not deprive a defendant
of his right to dismissal." (Brookview, supra, 218 Cal.App.3d at 509 (citing Bushing v.
Superior Court (1974) 12 Cal.3d 44, §2).) Rountree did not answer, participate in
discovery, or participate in any way in Ross // until it answered on February 17, 2011,
approximately three years and eleven months after the commencement of Ross Jin March
2007.
Iv is true that under Code of Civil Procedure section 340.2(a), the statute of
imitations in an action for injury or illness based upon exposure to asbestos never runs on

a claim made by a plaintiff who never suffers disability within the meaning of section

340.2(b). (See also Hamilton, supra, 22 Cal.4th 1127, 1138-42.) But Code of Civil
Procedure section 340.2 cannot be read in isolation, A plaintiff is barred from splitting his
or her causes of action, giving the plaintiff but a single opportunity to bring that action.

Code of Civil Procedure section 583.210 places a three-year limit on the time in which a

plaintiff may serve all defendants. A failure to do so mandates dismissal of the un-served
defendants under section 583.250. Itis under this construct—which aligns exactly with
the case at bar-—that requires Rountree to be dismissed from all claims arising from
"breathing difficulties, asbestosis, and/or other lung damage . . . [and] asbestos-related
pleural disease," as alleged in Ross /; that is, the claims not stemming from Mr. Ross!
alleged colon cancer.

Cc Plaintiffs Are Barred from Naming Rountree as a Defendant at this Late

Date Based on the Doctrine of Laches
Where plaintiff has unreasonably delayed in seeking to amend his complaint,
causing specific prejudice to the defendant, the court has discretion to deny leave to amend
to substitute the true name of any Doe defendant under the doctrine of laches. (See

Barrows v. American Motors Corp. (1983) 144 Cal-App.3d f, 8.)
we Po,
DEFENDANT ROUNTREE PLUMBING & HEATING INC'S (ORANDUM OF POINTS AN
AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISS PLAINTIFFS! CLAIMS ARISING FROM
THE ALLEGED ASBESTOSIS, ASBESTOS-RELATED PLEURAL DISEASE, AND OTHER LUNG
INJURIESSelman Breitman LLP
ATTORNEYS AT LAW

2314842 454,30543

Plaintiffs have unreasonably delayed in pursuing Rountree. It is difficult to see
how there could be any new facts in this case that delayed the discovery of Rountree as a
possible defendant. There is no evidence that Rountree had somehow concealed itself to
prevent plaintills from discovering Rountree. Rountree is incorporated in California and is
listed on the Secretary of State's business entity list. (See See'y of State's listing regarding
Rountree, attached to the Stewart Decl. as Exhibit D.) Easily found by any major Internet
search engine, a search for "Rountree Plumbing” will quickly reveal Rountree's website,

Neither plaintiff, nor his counsel was ignorant of Rountree while Ross / was
pending. In effect, the Ross /7 complaint merely amends the Ross / complaint, with
Rountree finally being named as a Doe defendant afler more than three years of litigation,

investigation and discovery. Plaintiff failed to exercise his due diligence naming Rountree,

with resulting prejudice to Rountree. In the three-and-a-half years between the filings of
the Ross J and Ross // complaints, memories have no doubt faded and evidence has been
lost. Plaintiffs have had the opportunity to liligale the asbestosis and asbestos-related
claims for over three years. Rountree, not having appeared in Ross J, has had no
opportunity to defend against these claims and will be at a distinct and irreconcilable
disadvantage if plaintiffs are permitted to maintain the asbestosis and asbestos-related
pleural disease claims against Rountree.

Db. Plaintiff Jean Ross' Loss of Consortium Claim Is Cared by the Statute of

Limitations under Section 335.1

To the extent that plaintiffJean Ross' loss of consortium cause of action is rooted in
Mr. Ross’ alleged asbestosis and other lung injuries, her claim is barred by the statute of
limitations. In Uram v. Abex Corp. (1990) 217 Cal. App.3d 1425, 1428 1430, 1436, the
plaintiff spouse asserted a loss of consortium claim arising from the asbestos-related injury
to her husband. Urav 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.

Ud. at 1436.) It remains the seminal case on the issue. Uraat held that the two-year statute
8

wes arene ne
DEFENDANT ROUNTREE PLUMBING & HEATING 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.bh

Selman Breitman Lip
ATTORNEYS AT LAW

231a84,2 454.3054

of limitatrons under former Code of Civil Procedure section 340, subdivision 3 (now
section 335.1) and not section 340.2 applied to claims for Joss of consortium based upon
the asbestos-related injuries to a spouse. (U/ram, supra, at 1436-1438; 3 Witkin, Cal. Proc.
Sth (2008) Statute of Limitations: Tort Actions, § 572, p. 729.) The court noted that a loss
of consortium claim is considered an independent injury to the spouse, Ud. at 1436.) As
an independent tort, the application of 340.2 does not necessarily attach, nor would the
application of 340.2 make any sense. (/d. at 1436-1437.) For example, section 340.2
could run against a plaintiff suffering an asbestos-related disability but would never run
against the spouse because the spouse never suffers disability within the meaning of
section 340.2. (/d.) Rather, the Uram court assumed the Legislature did not enact a
distinct loss of consortium rule for asbestos cases "precisely because existing law provided
for such cases,” namely what is now section 335.1. (ed at 1437.)

Code of Civil Procedure section 335.1 (former section 340(3)) states that the period
for commencement must be within two years for "[a]n action for assault, battery, or injury
to, or for the death of, an individual caused by the wrongful act or neglect of another."

Mr. and Mrs. Ross married in 1974. (Ross / Set One Responses, p. 2:6-10,
attached to the Stewart Decl. as Exhibit E.) Mr. Ross initiated his asbestos-related lawsuit
in March 2007. Mrs, Ross sat on her rights until the filing of Ross 4 in December 2010,
well past the two-year limitations period under Code of Civil Procedure section 335.1. To
the extent that Mrs. Ross' claims are based upon anything other than Mr. Ross' alleged
colon cancer injury, Mrs. Ross’ loss of consortium claim must be dismissed.

HIE. CONCLUSION

Plaintiffs’ complaint effectively secks to re-litigate the same causes of action as set

forth in the Ress 7 and Ross Hf complaints for the same discasc, asbestosis. In doing so,
plaintiffs are attempting to circumvent the mandatory three-year time limit in which to
serve the summons related to Ross /, Rountree respectfully requests the court dismiss

those portions of plaintiffs! complaint in Ross /7 relating to Mr. Ross! asbestosis, breathing
9

DEFENDANT ROUNTREE PLUMBING & HEATING 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
INJURIESSelman Breitman Lip
ATTORNEYS AT LAW

28

2Masa.2 454.084

difficultics, asbestos-related pleural disease, “and/or other lung damage."

DATED: September 19, 2011 SELMAN BREITMAN LLP

RHONDA L. WOO
GILLIAM F. STEWART
Attorneys for Defendant
ROUNTREE PLUMBING & HEATING INC.

oe 10 i
DEFENDANT ROUNTREE PLUMBING & HEATING INC'S MEMORANDUM OF POIN
AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISS PLAINTIFFS' CLAIMS ARISING FROM
THE ALLEGED ASBESTOSIS, ASBESTOS-RELATED PLEURAL DISEASE, AND OTHER LUNG
INJURIES