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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oD oe BSD TR DW De m oO APN DF FF YW N BRYDON Huco & PARKER 135 MaIN SYREDT 20°" FLOOR Sart Francisco, CA 94108 Edward R. Hugo [Bar No. 124839] Shelley K. Tinkoff [Bar No. 187498] BRYDON HUGO & PARKER 135 Main Street, 20 Floor ELECTRONICALLY San Francisco, CA 94105 FILED Telephone: (415) 808-0300 Superior Court of California, Facsimile: (415) 808-0333 County of San Francisco Email: tinkoff@bhplaw.com OCT 18 2011 Clerk of the Court Attorneys for Defendant BY: VANESSA WU DOMCO PRODUCTS TEXAS INC. Deputy Clerk Erroneously sued herein as DOMCO PRODUCTS TEXAS, L.P. fka AZROCK INDUSTRIES, INC. SUPERIOR COURT - STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION ROBERT ROSS and JEAN ROSS, (ASBESTOS) Case No. CGC-10-275731 Plaintiffs, vs. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF C.C. MOORE & CO. ENGINEERS; et al., | DEFENDANT DOMCO PRODUCTS TEXAS INC. erroneously sued herein as Defendants. DOMCO PRODUCTS TEXAS, LP. fka AZROCK INDUSTRIES, INC.'S MOTION TO DISMISS PLAINTIFFS’ CLAIMS ARISING FROM THE ALLEGED ASBESTOSIS, ASBESTOS-RELATED PLEURAL DISEASE, AND OTHER LUNG NJURIES Date: November 15, 2011 Time: 9:30 a.m. Dept. 503 udge: Hon. Teri L. Jackson I. INTRODUCTION Plaintiffs ROBERT ROSS and JEAN ROSS (hereafter, "Plaintiffs”) filed serial lawsuits based upon Mr. Ross’ alleged asbestosis and asbestos-related pleural disease. By filing serial lawsuits, Plaintiffs are attempting to circumvent the three- year limitations 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT DOMCO PRODUCTS TEXAS INC. erroneously sued herein as DOMCO PRODUCTS TEXAS, L.P. fka AZROCK INDUSTRIES, INC.'S MOTION TO DISMISS PLAINTIFFS' CLAIMS ARISING FROM THE ALLEGED ASBESTOSIS, ASBESTOS-RELATED PLEURAL DISEASE, AND OTHER LUNG INJURIESoD oe BSD TR DW De m oO APN DF FF YW N 21 BRYDON Huco & PARKER 135 MaIN SYREDT 20°" FLOOR Sart Francisco, CA 94108 period in which to serve defendants under California Code of Civil Procedure sections 335.1; 583.210 and 583.250. Defendant DOMCO PRODUCTS TEXAS INC. (“Domco”) respectfully moves this Court to dismiss Plaintiffs’ claims arising from Mr. Ross’ asbestosis and asbestos-related pleural disease as Plaintiffs already have a pending, pre-existing case based upon the same injuries. 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 Plaintiff's claims for breathing difficulties, asbestos-related pleural disease, asbestosis, and other lung damage. Il. STATEMENT OF FACTS A. The 2007 Complaint for Asbestos-Related Personal Injuries. On March 5, 2007, Mr. Robert Ross filed a complaint (hereafter "Ross 2007 Complaint’) for his asbestos-related personal injury, naming various defendants, including 8,500 Does. (See Declaration of Shelley K. Tinkoff ("Tinkoff Decl.") attached as Exhibit A.) Defendant Domco was not named in the initial Ross 2007 Complaint or in any subsequent amendments to the Ross 2007 Complaint. (See Tinkoff Decl. at Exhibit B.) Tn the Ross 2007 Complaint, Mr. Ross alleged that his exposure to asbestos, asbestos-containing products, and other toxic carginogenic products, caused severe and permanent injury to Mr. Ross, including but not limited to breathing difficulties, asbestosis, and/or other lung damage .... (Tinkoff Decl., Exhibit A at p. 27:12-16) Furthermore, Mr. Ross alleged that he was diagnosed with asbestos-related pleural disease on or about May 2006. (Tinkoff Decl., Exhibit A at p. 27:12-16) Jean Ross was not a party to the Ross 2007 Complaint. 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT DOMCO PRODUCTS TEXAS INC. erroneously sued herein as DOMCO PRODUCTS TEXAS, L.P. fka AZROCK INDUSTRIES, INC.'S MOTION TO DISMISS PLAINTIFFS' CLAIMS ARISING FROM THE ALLEGED ASBESTOSIS, ASBESTOS-RELATED PLEURAL DISEASE, AND OTHER LUNG INJURIESoD oe BSD TR DW De m oO APN DF FF YW N 21 BRYDON Huco & PARKER 135 MaIN SYREDT 20°" FLOOR Sart Francisco, CA 94108 Plaintiff's 2007 action for asbestos-related pleural disease, breathing difficulties, asbestosis, and/or other lung damage is still pending with this Court. B. The 2010 Complaint for Asbestos-Related Personal Injuries. Three and a half years after Plaintiff filed his first personal injury action for asbestos related pleural disease and asbestosis, Plaintiffs filed a second action. In their second action, filed on December 17, 2010 (hereafter “Ross 2010 Complaint”), Mr. Ross allege 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, Mr. Ross was diagnosed with colon cancer on or about October 20 10, and with asbestosis and asbestos-related pleural disease on or about May2009. (Tinkoff Decl., Exhibit C at 41:3-6). Both Plaintiffs’ 2007 action and his 2010 action seek redress for the same primary right — asbestos-related pleural disease, asbestosis breathing difficulties and/or other lung damage. Thus, Plaintiffs have violated the rule against splitting a cause of action and those claims based upon asbestos-related pleural disease, asbestosis breathing difficulties and/or other lung damage must be dismissed from Plaintiffs’ 2010 lawsuit. ll. LEGAL ARGUMENT A. Plaintiff Is Prohibited From "Splitting" A Single Cause Of Action Into 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.App.4th 1247, 1257; see also Rest.2d Judgments § 24). 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT DOMCO PRODUCTS TEXAS INC. erroneously sued herein as DOMCO PRODUCTS TEXAS, L.P. fka AZROCK INDUSTRIES, INC.'S MOTION TO DISMISS PLAINTIFFS' CLAIMS ARISING FROM THE ALLEGED ASBESTOSIS, ASBESTOS-RELATED PLEURAL DISEASE, AND OTHER LUNG INJURIESoD oe BSD TR DW De m oO APN DF FF YW N 21 BRYDON Huco & PARKER 135 MaIN SYREDT 20°" FLOOR Sart Francisco, CA 94108 The primary right theory provides that a “cause of action” is comprised of a “primary right” of the plaintiff, a corresponding “primary duty” of the defendant, and a wrongful act by the defendant constituting a breach of that duty. (Crowley, supra, 8 Cal.App.4th at 1257, see also Rest.2d Judgments § 24). 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. (Id.) "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, {| 6:250 at 6-69; Hamilton v. Asbestos Corp., Ltd. (2000) 22 CaL4th 1127, 1145, Craig v. County of Los Angeles (1990) 221 CaLApp.3d 294, 130.) More than one wrongful act may constitute a single cause of action. (Burdette v. Carrier Corp. (2008) 158 Cal_App.4th 668, 1684-1685.) 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) 24] Cal.App.2d 376, 382.) Code of Civil Procedure section 379 and 389 regarding the permissible and compuisary joinder of parties essential to resolution of the action also suggest that the prohibition against splitting of a cause of action applies equally to suits involving multiple defendants. The Legislature recognizes 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 Code of Civil Procedure section 389.) The rule against splitting a cause of action sounds in principles of res judicata and abatement. (Hamilton v. Asbestos Corp, Lid. (2000) 22 Cal.4th 1127, 1147, Grisham v. Philip Morris USA, Inc. (2007) 40 Cal.4th 623.) These interrelated rules are intended to "preserve 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT DOMCO PRODUCTS TEXAS INC. erroneously sued herein as DOMCO PRODUCTS TEXAS, L.P. fka AZROCK INDUSTRIES, INC.'S MOTION TO DISMISS PLAINTIFFS' CLAIMS ARISING FROM THE ALLEGED ASBESTOSIS, ASBESTOS-RELATED PLEURAL DISEASE, AND OTHER LUNG INJURIESoD oe BSD TR DW De m oO APN DF FF YW N 21 BRYDON Huco & PARKER 135 MaIN SYREDT 20°" FLOOR Sart Francisco, CA 94108 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 systems by inviting inconsistent rulings on the same legal issues from different courts. It cannot be denied that there are physical injuries alleged in the Ross 2007 Complaint which are identical to the physical injuries alleged in the Ross 2010 Complaint. Defendant Domco moves the court in abatement to preclude plaintiff from suing Domco for identical injuries as alleged in the Ross 2007 complaint. Had Plaintiffs wanted to pursue Domco for those injuries, they should have named Domco in their 2007 Complaint. B. Plaintiffs’ Claims Based Upon Asbestosis and Asbestos-Related Pleural Disease Must Be Dismissed For Failure To Serve Domco Within Three In bringing the same claims regarding asbestos-related pleural plaques, asbestosis, breathing problems and asbestos-related lung injuries in the Ross 2010 Complaint, Plaintiffs seek to improperly skirt the jurisdictional requirements of Code of Civil Procedure sections 583.210 and 583.250 which require that Plaintiffs 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 & Co. (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. State (1982) 139 Cal.App.3d 72, 76-77; Mike Silverman & Assoc. v. Drai (C.D. Cal. 1987) 569.F.Supp. 741, 744.) Here, it is undisputable that Mr. Ross filed his first complaint on March 5, 2007, alleging lung and breathing issues from exposure to asbestos. He did not name Domco in that action. Now that it is too late for him to do so, he brings a second action for the 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT DOMCO PRODUCTS TEXAS INC. erroneously sued herein as DOMCO PRODUCTS TEXAS, L.P. fka AZROCK INDUSTRIES, INC.'S MOTION TO DISMISS PLAINTIFFS' CLAIMS ARISING FROM THE ALLEGED ASBESTOSIS, ASBESTOS-RELATED PLEURAL DISEASE, AND OTHER LUNG INJURIESoD oe BSD TR DW De m oO APN DF FF YW N 21 BRYDON Huco & PARKER 135 MaIN SYREDT 20°" FLOOR Sart Francisco, CA 94108 same injuries, as well as additional injuries. Plaintiffs cannot circumvent the three requirement of Code of Civil Procedure sections 583.210 and 583.250 by attempting to pursue Domco in serial litigation. Cc. Plaintiffs are Barred from Naming Pribuss as a Defendant at this Late Stage Based Upon the Doctrine of Laches. When 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 names of any Doe defendant under the doctrine of laches. Plaintiffs have unreasonably delayed in naming Domco as a defendant. Plaintiffs are trying to bring Domco into this litigation t after more than three years of litigation. Plaintiffs failed to exercise due diligence in naming Domco in their 2007 Complaint, with resulting prejudice to Domco. Mr. Ross has had the opportunity to investigate, conduct discovery including depositions and litigate his asbestosis and asbestos-related claims for over three years. Domco was never a party to the Ross 2007 Complaint and as such did not participate in that litigation which has now placed Domco at a distinct disadvantage. Plaintiff should not be allowed to maintain his claim of asbestosis and asbestos-related pleural disease, which is well over three years old, as to Domco. D. Jean Ross’ Loss of Consortium Claim is Bared by the Statute of Limitations Under Section 335.1. To the extent that Mrs. Ross’ loss of consortium claim is based on her husband's alleged asbestosis and other lung injuries, those claims are bared 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. 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 143) The Uram court held that the two-year statute 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 1436-1438; 3 Witkin, Cal.Proc. 5th 6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT DOMCO PRODUCTS TEXAS INC. erroneously sued herein as DOMCO PRODUCTS TEXAS, L.P. fka AZROCK INDUSTRIES, INC.'S MOTION TO DISMISS PLAINTIFFS' CLAIMS ARISING FROM THE ALLEGED ASBESTOSIS, ASBESTOS-RELATED PLEURAL DISEASE, AND OTHER LUNG INJURIESoD oe BSD TR DW De m oO APN DF FF YW N 21 BRYDON Huco & PARKER 135 MaIN SYREDT 20°" FLOOR Sart Francisco, CA 94108 (2008) Statute of Limitations:Tort Actions, Section 572, at p. 719). The Code of Civil Procedure section 335.1 states that the period for commencement 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 Ross 2007 Complaint. In fact, Mrs. Ross did not file any loss of consortium claims until the Ross 2010 Complaint, which is well past the allowed two years statute of limitations period as set forth in Code of Civil Procedure section 335.1. Thus Mrs. Ross’ loss of consortium claims if any should be limited to Mr. Ross’ alleged colon cancer. Iv, CONCLUSION Plaintiffs’ 2010 Complaint is an attempt to re-litigate claims from Mr. Ross’ alleged asbestosis and asbestos-related pleural disease. However, maintaining two law suits for violation of the same primary right is clearly contrary to California law. Moreover, Plaintiffs attempt to recover in their 2010 action for claims raised in their 2007 action violates the mandatory three-year time limit in which to serve the summons related to their 2007 complaint. Defendant Domco respectfully requests that this court dismiss those portions of the Plaintiffs’ 2010 Complaint relating to Mr. Ross’ asbestosis, breathing difficulties, asbestos-related pleural disease, and/or other lung damage. Dated: October 18, 2011 BRYDON HUGO & PARKER By: _/s/ Shelley K. Tinkoff Edward R. Hugo Shelley K. Tinkoff Attorneys for Defendant DOMCO PRODUCTS TEXAS INC. Erroneously sued herein as DOMCO PRODUCTS TEXAS, L.P. fka AZROCK INDUSTRIES, INC. 7 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT DOMCO PRODUCTS TEXAS INC. erroneously sued herein as DOMCO PRODUCTS TEXAS, L.P. fka AZROCK INDUSTRIES, INC.'S MOTION TO DISMISS PLAINTIFFS' CLAIMS ARISING FROM THE ALLEGED ASBESTOSIS, ASBESTOS-RELATED PLEURAL DISEASE, AND OTHER LUNG INJURIES