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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POOLE & SHAFFERY, LLP 400 SOUTH HOPE STREET, SUITE 1100 FACSIMILE (213) 439-0183 LOS ANGELES, CALIFORNIA 90071 TELEPHONE (213) 439-5390 ewe Se DD Hh h WN Se oe ee Se ee A A & WwW NY SF S 17 POOLE & SHAFFERY, LLP John H. Shaffery (SBN 160119) E-mail: jshaffery@pooleshaffery.com Luiza Manuelian (SBN 233154) E-mail:Imanuelian@pooleshaffery.com Brian R. Tinkham (SBN 237053) E-mail: btinkham@pooleshaffery.com 400 South Hope Street, Suite 1100 Los Angeles, California 90071 (213) 439-5390 Phone (213) 439-0183 Facsimile Attorneys for Defendant, H&C INVESTMENT ASSOCIATES, INC. ELECTRONICALLY FILED Superior Court of California, County of San Francisco MAR 22 2012 Clerk of the Court BY: VANESSA WU Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO ROBERT ROSS and JEAN ROSS, Plaintiff, VS. C.C. MOORE & CO., ENGINEERS; Defendants as Reflected on Exhibit | attached to the Summary Complaint herein; and DOES 1-8500, et al. Defendants. Case No, CGC-10-275731 [Assigned to the Hon. Teri L. Jackson] DEFENDANT H&C INVESTMENT ASSOCIATES, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION TO CONSOLIDATE ACTIONS AND CONTINUE THE TRIAL DATE Date: Time: Dept. April 2, 2012 9:00 a.m. 503 Complaint Filed: Trial Date: December 17, 2010 None COMES NOW, Defendant, H&C Investment Associates, Inc. (“H&C”), and submits its Opposition to Plaintiffs’ Motion to Consolidate the Actions and Continue the Trial Date. it it Hh dit Hi i “1. F:Clionts2\97513 100-ROBERT ROSS v. CC MOORE (H&C)\PLEADINGS\Opposition. Plaintift's Motion Preference.001.wpd DEFENDANT H&C INVESTMENT ASSOCIATES, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION TO CONSOLIDATE ACTIONS AND CONTINUE THE TRIAL DATEPOOLE & SHAFFERY, LLP 400 SOUTH HOPE STREET, SUITE 1100 FACSIMILE (213) 439-0183 LOS ANGELES, CALIFORNIA 90071 TELEPHONE (213) 439-5390 ce a KA mH BR WY Ye pm e aA vUA kk BY BP = S&S 17 MEMORANDUM OF POINTS AND AUTHORITIES I. Introduction. This Motion was supposed to be heard on November 10, 2011 but Plaintiffs’ counsel took this motion off-calendar. Now, nearly five months later and facing problems with the five year rule in the Ross 2007 action, Plaintiffs’ counsel again seeks to consolidate the Ross 2007 action with the Ross 2010 action under the disguise that the actions need to be consolidated. In reality, this motion is brought solely for strategic advantage and to prejudice the defendants in both actions. These actions cannot be consolidated for the following reasons: (1) there has been significant amount of discovery conducted in both actions that the Ross 2007 defendants and Ross 2010 defendants have not been a part of, including the likelihood of expert discovery depositions in the Ross 2007 action and three years of discovery in-between the Ross 2007 action and the Ross 2010 action; (2) a jury will not be able to differentiate between one group of defendants that alleged!y caused “colon cancer” and another group of defendants that allegedly caused “asbestosis” and “colon cancer” without possibly seeking to punish one group or the other and as a result all defendants likely will be even further prejudiced by consolidating these cases; and (3) there are significant differences between the scientific causes between asbestosis and colon cancer. Moreover, the dismissals of the asbestosis claims that Plaintiffs’ counsel has been giving to the 2010 defendants would be nullified by consolidating the actions. Moreover, the Ross 2007 action does not need to be consolidated based on the five year rule. What is strangely missing from Plaintiffs motion is a statement saying that there is no way that the Koss 2007 action cannot get to at least a hearing on Motions in Limine or at least select a jury on or about April 2, 2012 to stop the running of the five year statute. In short, we are here due to Plaintiffs’ lack of due diligence by not including all potential defendants in the Ross 2007 action (an act that caused many of the Ross 2010 defendants to file numerous motions to dismiss with this court over the last year). Plaintiffs’ counsel should not be allowed to rectify their problem five years after their mistake solely for the strategic advantage of trying the two cases at once. Plaintiffs’ counsel could have filed amendments to the Ross 2007 Complaint for the Ross 2010 defendants or brought this very motion sooner rather than on the eve of trial in the 2007 action but chose not to. As aresult, Plaintiffs’ Motion should be denied as it will 2- F:\Clients2\9753 100-ROBERT ROSS v. CC MOORE (H&C)\PLEADINGS\Opposition Plaintiffs. Motion Preference.001.wpd DEFENDANT H&C INVESTMENT ASSOCIATES, INC,’S OPPOSITION TO PLAINTIFFS’ MOTION TO CONSOLIDATE ACTIONS AND CONTINUE THE TRIAL DATEPOOLE & SHAFFERY, LLP 400 SOUTH HOPE STREET, SUITE 1100 FACSIMILE (213) 439-0183 LOS ANGELES, CALIFORNIA 90071 TELEPHONE (213) 439-5390 ew Se HD DH He WH Nm weet nau kk Ww NY =m S 17 greatly prejudice all defendants in both actions. Il. Statement of Facts. On March 5, 2007, Plaintiff Robert Ross filed a Complaint claiming that his asbestos-related injury (asbestosis) was caused by his occupational exposure to asbestos and asbestos-containing products. On December 17, 2010, Plaintiffs Robert Ross and Jean Ross filed a Complaint claiming that Mr. Ross’s asbestos-related injury (colon cancer) was caused by his occupational exposure to asbestos and asbestos-containing products. Numerous defendants in the Ross 2010 action, including H&C, filed Motions to Dismiss Plaintiffs’ Causes of Action based on statute of limitations issues over the last year. Plaintiffs’ counsel has voluntarily dismissed several causes of action against the Ross 2010 defendants based on these motions including the asbestosis claim from the Ross 2010 action. This Motion to Consolidate was previously scheduled for November 10, 2011. Trial is set in the Ross 2007 action for April 2, 2012. Til. Plaintiffs’ Motion Fails To Address the Three Factors The Court Should Consider in Order to Grant a Motion to Consolidate the Two Cases. The granting or denial of the motion to consolidate rests in the sound discretion of the trial court, and will not be reversed except upon a clear showing of abuse of discretion. [Fe/lner v. Steinbaum (1955) 132 Cal.App.2d 509, 511.] According to the Rutter Guide, there are certain factors that the Court shouid iook for including: (i) “whether granting consolidation would delay the triai of any of the cases involved, or whether discovery in one or more of the cases has proceeded without all parties present,” (2) “whether joining the actions involved would make the trial too confusing or complex for a jury,” and (3) “whether consolidation would adversely affect the rights of any party.” [California Practice Guide: Civil Procedure Before Trial, Chapter 12(I)-E, Section 12:362, Hon. William F, Rylaarsdam, Hon. Lee Smalley Edmon.] Consolidating the cases on the eve of trial will delay the trial date in the 2007 Ross action and prejudice defendants. The Ross 2007 defendants have likely incurred costs preparing for trial including expert witnesses costs. Continuing that case at this time will only cause the Ross 2007 defendants to 3. F.\Clionts2\975\3 100-ROBERT ROSS y. CC MOORE (H&C)\PLEADINGS\Opposition Plaintiff s. Motion. Preference.001.wpd DEFENDANT H&C INVESTMENT ASSOCIATES, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION TO CONSOLIDATE ACTIONS AND CONTINUE THE TRIAL DATEPOOLE # SHAFFERY, LLP 400 SOUTH HOPE STREET, SUITE 1100 LOS ANGELES, CALIFORNIA 90071 TELEPHONE (213) 439-5390 FACSIMILE (213) 439-0183 oC em I A wh RH Ne MM NN NON NNO ie co KA A ke ON EF SG Oo I KR HH Rh YW NY = incur additional costs as they will likely have to prepare for trial one more time and go through expert and percipient witness discovery again. Additionally, discovery, including expert discovery, has likely been completed in the Ross 2007 action as the parties are on the eve of trial. The Ross 2010 defendants have not participated in this discovery and would be disadvantaged. Moreover, by granting the extension, the Court is allowing Plaintiffs counsel in the Ross 2007 action additional time to conduct discovery. Joining these actions will also make the trial too confusing and complex for ajury. Plaintiff's claims in the Ross 2007 action stem from his diagnosis of asbestosis and colon cancer. Plaintiffs’ claims in the Ross 2010 action stem from his diagnosis of colon cancer. Both asbestosis and colon cancer have different scientific causes and factors attributed to these diseases. As a result the trial on both diseases may be too confusing or complex for the jury to understand the scientific arguments by the 2007 Ross defendants and the 2010 Ross defendants as one set of defendants will solely present evidence on colon cancer while another set of defendants will present evidence on asbestosis and colon cancer, In light of the foregoing statements, there is no way that the Ross 2007 and 2010 defendants will not be prejudiced by consolidating these two trials as a jury could possibly lump both groups of defendants together as the cause of Mr. Ross’ diseases or by punishing one group over the other on the basis that one group allegedly caused “colon cancer” versus the other group allegedly caused “asbestosis” and “colon cancer.” For example, the jury may wonder why one group is alleged to have caused asbestosis while the other group did not cause asbestosis. Furthermore, both groups of defendants will incur additional costs in reviewing prior deposition transcripts and written discovery responses from both actions. Plaintiffs’ counsel argues throughout their brief that the reason these cases need to be consolidated is because Plaintiff suffers from diseases from exposure to asbestos containing products. Plaintiffs’ counsel had a duty to their client to identify and properly join all necessary parties to the 2007 Ross action and failed to do so, They have not been diligent and have made the parties incur unnecessary costs because of their lack of diligence. Granting this motion only awards this lack of diligence and prejudices all of the defendants. While it is unfortunate that the Court will have to 4. FAClients2\975\3100-ROBERT ROSS v. CC MOORE (H&C)\PLEADINGS\ Opposition. Plainnif's. Motion.Preference.001 awpd DEFENDANT H&C INVESTMENT ASSOCIATES, INC.'S OPPOSITION TO PLAINTIFFS? MOTION TO CONSOLIDATE ACTIONS AND CONTINUE THE TRIAL DATEFACSIMILE (213) 439-0183 LOS ANGELES, CALIFORNIA 90071 TELEPHONE (213) 439-5390 POOLE & SHAFFERY, LLP 400 SOUTH HOPE STREET, SUITE 1100 2. me YD DAH eB WY = RB BM RY HM HR NR RNR RO ema era AA Bw Nye S SC we I DH FW YY me S undergo the costs of two trials in these troubling economic times, the alternative is far worse as Plaintiffs’ motion is not supported by the facts that occurred in these two actions. IV. Conclusion. For all the above-referenced reasons, defendant H&C Investment Associates, Inc. respectfully requests that this Court deny Plaintiff's Motion to Consolidate the Ross 2007 Action with the Ross 2010 Action, DATED: March 22, 2012 POOLE & SHAFFERY, LLP . Shaftery Luiza Manuelian Brian R. Tinkham Attorneys for Defendant, H&C Investment Associates, Inc. 5- £:\Clients2097513 100-ROBERT ROSS v. CC MOORE (H&C)\PLEADINGS'Opposition Plaintiff's Motion Preferenee,001.wpd DEFENDANT H&C INVESTMENT ASSOCIATES, INC,’S OPPOSITION TO PLAINTIFFS’ MOTION TO CONSOLIDATE ACTIONS AND CONTINUE THE TRIAL DATECo Oe YD WwW BF YW NY NN NY NY KR YY NY YN Be Be Be Se Se Se ee eR ee ec YW DRA BY YN = SF GC we HW KH HW BW HY | Ss PROOF OF SERVICE (C.C.P. § 1013a and § 2015.5) Robert Ross and Jean Ross y. C.C. Moore & Co. Engineers, et al SFSC Case No.: CGC-10-275731 Jam employed in the County of Los Angeles, State of California, I am over the age of 18 years and not a party to the within action; my business address is 400 S. Hope Street, Suite 1100, Los Angeles, CA 90071. Tam employed in the County of Los Angeles, State of California. [ am over the age of 18 years and not a party to the within action. My business address is 400 South Hope Street, Suite 1100, Los Angeles, CA 90071. On March 22, 2012, I served the foregoing document described as: DEFENDANT H&C INVESTMENT ASSOCIATED, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION TO CONSOLIDATE ACTIONS AND CONTINUE THE TRIAL DATE on the interested parties in said action addressed as follows: kk SEE LEXIS/NEXIS SERVICE LIST Hoe o By mail [State]: 1am readily familiar with Poole & Shaffery, LLP’s practice for the collection and processing of mail with the United States Postal Service; such envelope will be deposited with the United States Postal Service on the above date in the ordinary course of business at the business address shown above; and such envelope was placed for collection and mailing on the above date according to Poole & Shaffery, LLP’s ordinary business practices. o By facsimile: I caused said document to be transmitted by facsimile to each addressee set forth below on this date before 5:00 p.m. The transmission of this document was complete and without error. oO By overnight delivery: I caused such envelope to delivered via overnight delivery to the party(ies) listed on the attached mailing list. a By electronic service: I caused such document to be posted it directly on the LexisNexis File & Serve website: https://www.fileandserve.lexisnexis.com. Executed on March 22, 2012, at Los Angeles, California. a [State] I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. a [Federal] I declare that I am employed in the office of a member of the bar of this Court at whose direction this service was made. ixfcon, Declarant PROOF OF SERVICE