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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LAW OFFICES OF COOLEY MANION JONES HAKE Kurowski LLP 0 Oo WN DH BB WN bh RW Be NR NY NY RY NR Re Se Ee Be Be Be Se Se eS Be oD A A FB Sb = SB we HN KH AH RR YW NY HK Do William M. Hake, Esq. (State Bar No. 110956) Joanna L. Drozd, Esq. (State Bar No.253707) COOLEY MANION JONES HAKE KUROWSKI LLP 201 Spear Street, Suite 1800 San Francisco, CA 94105 Tel: = (415) 512-4381 Fax: (415) 512-6791 Attorneys for Defendant COLLINS ELECTRICAL COMPANY, INC. ELECTRONICALLY FILED Superior Court of California, County of San Francisco FEB 03 2011 Clerk of the Court BY: WILLIAM TRUPEK Deputy Clerk IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO ROBERT ROSS AND JEAN ROSS, Plaintiffs, Case No. CGC-10-275731 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF v. , COLLINS ELECTRICAL COMPANY, ASBESTOS DEFENDANTS (BP), Defendants. Time: Dept.: IL INTRODUCTION Hearing Date: Complaint Filed: Trial Date: INC.’S MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ COMPLAINT March 3, 2011 9:30 a.m. 220 December 17, 2010 TBD Plaintiffs Robert Ross (hereinafter “Mr. Ross” or “Plaintiff’) and Jean Ross (hereinafter collectively “Plaintiffs”) have filed successive lawsuits arising out of Mr. Ross’s claims for asbestosis and asbestos-related pleural‘disease. Plaintiffs have attempted to circumvent Code of Civil Procedure section 583.210’s requirement that all defendants must be served within three years after an action is commenced by adding an unrelated claim for colon cancer to the old -1- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF COLLINS ELECTRICAL COMPANY, INC.’S DEMURRER TO PLAINTIFFS’ COMPLAINT‘LAW OFFICES OF COOLRY MANION JONES HAKE KUROWSKI LLP w asbestosis and asbestos-related pleural disease claims. Collins thus brings this motion to strike portions of Plaintiffs’ complaint pursuant to Code of Civil Procedure sections 435, 436, and 437. Il. STATEMENT OF FACTS A. The First Personal Injury Suit - Ross I On March 5, 2007, Mr. Ross filed a complaint for an alleged asbestos-related personal injury, naming numerous defendants and 8500 “Doe” defendants (hereinafter “Ross I”). Collins was not expressly named as a defendant. (Complaint for Personal Injury — Asbestos, filed on March 5, 2007, in Robert Ross v. Asbestos Defendants, San Francisco County Superior Court, Case No. CGC-07-274099 (hereinafter “Ross / complaint”), attached to the Request for Judicial Notice in Support of Collins Electrical Company, Inc.’s Motion to Strike Portions of Plaintiffs’ Complaint (hereinafter “Collins’s RJN.”) as Exhibit A.) In the Ross J complaint, Plaintiff contended that his “exposure to asbestos, asbestos- / containing products, and other toxic carcinogenic products, caused severe and permanent injury to the plaintiff, 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 cancers. Plaintiff was diagnosed with asbestos-related pleural disease on or about May 2006.” (ld. at 27:12-16; see also id. at 3:1-2.) 1, The Initial Two Amendments to the Ross J Complaint Did Not Expressly Name Collins as a Defendant. On December 27, 2007, Plaintiff filed an amendment to the Ross J complaint, substituting true and correct names for “Doe” designations for multiple defendants. Collins remained an unnamed defendant. (Amendment to Complaint, attached to Collins’s RJN as Exhibit B.) On May 8, 2008, Plaintiff filed a second amendment to the Ross J complaint, substituting true and correct names for “Doe” designations for multiple defendants. Collins still remained an unnamed defendant. (Amendment to Complaint, attached to Collins’s RIN as Exhibit C.) -2- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF COLLINS ELECTRICAL COMPANY, INC’S DEMURRER TO PLAINTIFFS’ COMPLAINTLaw OPFFICKS OF COOLEY MANION JONES HAKE KUROWSKI LLP 2. Plaintiff Expressly Named Collins in his Standard Interrogatory Responses in Ross I. On May 27, 2008, Mr. Ross’s supplemental/amended responses to the standard interrogatories were served. Therein, Mr. Ross stated that he worked around “COLLINS ELECTRIC” “{t}hroughout his career .. . on multiple occasions.” (Supplemental/Amended Responses to Interrogatories, excerpts attached to Collins’s RJN as Exhibit D, at 85:28-86-3, emphasis added.) Plaintiff served a verification on June 16, 2008. (Verification, attached to Collins’s RIN as Exhibit E.) 3. Four Subsequent Amendments to the Ress J Complaint Still Did Not Expressly Name Collins as a Defendant. On September 4, 2008, March 4, 2009, and March 5, 2009, Plaintiff filed four additional amendments to the Ross i complaint, substituting true and correct names for “Doe” designations for multiple defendants. Collins was still not expressly named in any of these amendments. (Amendment to Complaint, attached to Collins’s RJN as Exhibits F-H.) 4. Plaintiff Continued to Expressly Identify Collins In His Amendments / Supplements to his Standard Interrogatory Responses in Ress 1. On March 27, 2009, March 11, 2010, and December 14, 2010, Plaintiff served supplemental/amended responses to the standard interrogatories. In his supplemental/amended response, Plaintiff stated that he worked around “COLLINS ELECTRIC” “[t]hroughout his career... on multiple occasions.” (Supplemental/Amended Responses to Interrogatories, excerpts attached to Collins’s RJN as Exhibit J, at 96:13, emphasis added; (Supplemental/Amended Responses to Interrogatories, excerpts attached to Collins’s RJN as Exhibit K, at 96:28, emphasis added; Supplemental/Amended Responses to Interrogatories, excerpts attached to the Collins’s RJN as Exhibit M, at 103:13, emphasis added.) Plaintiff served verifications on April 8, 2009, and March 23, 2010. (Verifications, attached to Collins’s RJN as Exhibit J and L.) -3- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF COLLINS ELECTRICAL COMPANY, INC.’S DEMURRER TO PLAINTIFFS’ COMPLAINTLAw OFFICES OF COOLEY MANION JONES HAKE KuROWSKI LLP ND WW B WwW HN B. The Second Personal Injury Suit - Ross I Over three and a half years after filing the Ross J complaint, Plaintiff filed another complaint for alleged asbestos-related personal injury on December 17, 2010 (hereinafter “Ross IP’ and “Ross I complaint”). For the first time, Collins was explicitly named as a defendant. (Ross H/ complaint, at unpaginated [second page], 46:20, 49:23, and 119:21, attached to Collins’s RJN as Exhibit N.) In the Ross H complaint, Plaintiff contends that his “exposure to asbestos and asbestos- containing products caused severe and permanent injury to the plaintiff, including, but not limited to 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.” (id. at 41:3-6; see also id. at 3:1-2.) Even the Plaintiff's Preliminary Fact Sheet, attached to the Ross H complaint, specifies that the “nature or type of asbestos-related disease alleged by each exposed person” included asbestosis and “pleural thickening/plaques.” (Preliminary Fact Sheet, at 2:10-12, attached to Collins’s RIN as Exhibit 0.) The Brayton Purcell Master Complaint for Personal Injury [and Loss of Consortium] ~ Asbestos was incorporated by reference to the Ross i! complaint. (See Master Complaint, attached to Collins’s RJN as Exhibit P.) Collins was served with the summons in the above-entitled case on January 3, 2011. Ill. LEGAL ARGUMENT A. This Motion is Appropriate Under Code of Civil Procedure Section 435, 436, and 437, Code of Civil Procedure section 435(b)(1) allows any party, within the time allowed to respond to a pleading, to serve and file a motion to strike, in whole or in part, any part ofa pleading. Upon such a motion, the court may “[s]trike out any irrelevant, false, or improper matter inserted in any pleading” or “{s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of the state, a court rule, or an order of the court.” Code Civ. Proc. § 436(a), (b). The grounds for a motion to strike shall appear on the face of the pleading or from any matter which the court is required to take judicial notice. Code Civ. Proc. § 437(a). -4- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF COLLINS ELECTRICAL COMPANY, INC.’S DEMURRER TO. PLAINTIFFS’ COMPLAINTLAW OFFICES OF COOLRY MANION JONES HAKE KuROWSKI LLP Plaintiff filed this action on December 17, 2010, and served Collins on January 3, 2011. Defendant’s responsive pleading in this matter is due on February 2, 2011. (Code Civ. Proc., § 412.20(a)(3), (12.).) As such, the instant motion is timely. This court is empowered to take judicial notice of the matters attached to the accompanying Request for Judicial Notice, including Plaintiff's prior discovery responses. A court may take judicial notice of discovery responses to the extent they contradict the complaint. (See Bockrath v. Aldrich Chem. Co., inc. (1999) 21 Cal.4th 71, 83.) B. Plaintiff's Claim for “Asbestosis” and “Asbestos-Related Pleural Disease” in Ross II Must be Stricken as Plaintiff Failed to Explicitly Name and Serve Collins in Ross I. Code of Civil Procedure section 474, dealing with “Doe” defendants, states that when the “true name” of a defendant “is discovered, the pleading or proceeding must be amended accordingly.” (Emphasis added.) Code of Civil Procedure section 583.210(a) sates, “The summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant.” (Emphasis added.) “Commenced” means the filing of the complaint. (Code Civ, Proc., § 583.210(a).) As aresult, ifa “Doe” defendant is not served within three years, the court must dismiss the late-served defendant. (Code Civ. Proc., § $83.250(a), (b).) In order to name a fictitious defendant, a plaintiff must be “ignorant of the name of [the] defendant.” (Code Civ. Proc., § 474; see also Munoz v. Purdy (1979) 91 Cal. App.3d 942, 947 (stating that a plaintiff must “actually be ignorant of the facts giving [him] a cause of action against a defendant”).) A plaintiff is not permitted to name a known defendant in a fictitious manner in the hopes of surprising that defendant after “evidence has been lost, memories of faded and witnesses have disappeared.” (/d. at 946-947.) In the instant case, Plaintiff named an unwieldy 8500 “Doe” defendants in Ross I. Plaintiff amended the Ross J complaint no less than five times to substitute the true and correct names for various “Doe” defendants. -5- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF COLLINS ELECTRICAL COMPANY, INC.’S DEMURRER TO PLAINTIFFS’ COMPLAINTLAW OFFICES OF COOLEY MANION JONES Hake Kurows«i LLP However, Plaintiff failed to substitute Collins for a “Doe” defendant, even though Plaintiff was not ignorant of Collins's identity. Plaintiff repeatedly named Collins in his interrogatory responses as a contractor with whom he purportedly worked “[t]broughout his career... on multiple occasions.” Once Plaintiff knew Collins’s identity, Plaintiff was required, pursuant to Code of Civil Procedure section 474, to amend the complaint to substitute Collins as a “Doe” defendant. Nonetheless, Plaintiff failed to do so and cannot now be given a second opportunity to assert a claim against Collins for “asbestosis” and “asbestos-related pleural disease” as claimed in the first suit. By refilling a complaint for the same causes of action and for the same diseases — asbestosis and asbestos-related pleural disease — Plaintiff is impermissibly attempting to substitute Collins as a “Doe” defendant beyond the three-year statute of limitations within which all “Doe” defendants must be named. (Code Civ, Proc., § 583.210(a).} Cc. Plaintiffs Are Barred from Naming Collins as a Defendant at this Late Date Based on the Doctrine of Laches, Where there is evidence of laches, meaning unreasonable delay by a plaintiff in seeking leave to amend, causing specific prejudice to the defendant, the court has discretion to deny leave to amend to substitute the true name of an entity for a “Doe” defendant. (See Barrows v. American Motors Corp. (1983) 144 Cal.App.3d 1, 8.) Plaintiff was not ignorant of Collins’s identity while the Ross J casé was pending. In effect, the Ross IT complaint merely amends the prior complaint, including the substitution of Collins as a “Doe” defendant. Plaintiff failed to exercise his due diligence in naming Collias, resulting in prejudice to Collins. Plaintiff has had the opportunity to litigate his asbestosis and asbestos-related pleural disease claims for over three years. Collins, not having appeared in Ross T, has had no opportunity to defend against these claims and will be at a distinct and irreconcilable disadvantage if Plaintiffs are permitted to maintain these claims against it. IV. CONCLUSION Plaintiffs improperly split the causes of action for asbestosis and pleural disease into successive lawsuits as a means of evading the three-year statute of limitations requiring service -6- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF COLLINS EILECTRICAL COMPANY, INC.’S DEMURRER TO PLAINTIFFS’ COMPLAINTLaw OFFICKS OF COOLEY MaNION JONES HAKE KUROWSKI LLP 0 oe WD DH HW & BW NY HY RB MN NY NY NY NR NY NR Bee ee ee we es ee oD A MW BF BW HY =F SF Cwm BA mH BF HW HP KH DS on all defendants. Collins was served with Ress II for an identical purported asbestos-related personal injury more than three years after Plaintiffs commenced Ross I. As a result, Code of Civil Procedure sections 474 and 583.210, et seq., bar Plaintiffs attempt to litigate the asbestosis and asbestos-related pleural disease claims against Collins. Collins hereby prays for an order striking the requested portions of the Ress Il Complaint and Master Complaint. Respectfully Submitted, Dated: February 2, 2011 COOLEY MANION JONES HAKE KUROWSKI LLP By> a L. Drozd, Esq. Attorneys for Defendant COLLINS ELECTRICAL COMPANY, INC. -7- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF COLLINS ELECTRICAL COMPANY, INC.*°S DEMURRER TO PLAINTIFFS’ COMPLAINT