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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BRAYTON@PURCELL LLP ATTORNEYS ATLAW (222 RUSH LANDING ROAD PO BOX 6169 NOVATO, CALIFORNIA 94943-6169 (415) 898-1555. OD PW A H BR WN 10 DAVID R. DONADIO, ESQ., S.B. #154436 JAMIE A. NEWBOLD, ESQ., S.B. #207186 BRAYTON“PURCELL LLP ELECTRONICALLY Attorneys at Law 222 Rush Landing Road FILED P.O. Box 6169 Superior Court of California, Novato, California 94948-6169 County of San Francisco (415) 898-1555 MAR 13 2012 Attorneys for Plaintiffs oclerk of the Court Deputy Cle SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO ROBERT ROSS, ASBESTOS No. CGC-07-274099 Plaintiff, vs. ASBESTOS DEFENDANTS (BP) ROBERT ROSS and JEAN ROSS, } No, CGC-10-275731 Plaintiffs, ) MEMORANDUM OF POINTS AND ) AUTHORITIES IN SUPPORT OF vs. PLAINTIFFS’ MOTION TO CONSOLIDATE ACTIONS AND C.C. MOORE & CO. ENGINEERS; CONTINUE THE TRIAL DATE Defendants as Reflected on Exhibit 1 ee attached to the Summary Complaint [C.C.P. §1048(a); C.C.P.§583.3400] herein; and DOES 1-8500. Date: April 2, 2012 Time: 9:30 a.m. Dept.: 503, Hon. Teri L. Jackson Dates of Filing: No. CGC-07-274099- March 5, 2007 Trial Date: April 2, 2012 No. CGC-10-275731-Dec. 17, 2010 Trial Date: N/A Plaintiffs ROBERT ROSS and JEAN ROSS hereby move to consolidate CGC-07- 274099 [filed March 5, 2007] (“ROSS 2007") and CGC-10-275731 [filed Dec. 17, 2010] (“ROSS 2010") pursuant to C.C.P. section 1048(a) and continue the current trial date of April 2, uy KAlnigreal 1949 ySipdeariran convulidato-cont trial wpe 1 tas MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION TO CONSOLID. CONTINUE THE TRIAL DATE ISOLIDATE ACTIONS ANDCo mI DH A SS WwW 10 2012, pursuant to C.C.P. section 583.340©, to one prescribed by the time line of ROSS 2010, pursuant to C.C.P, section 583.310. STATE) OF In May, 2006, plaintiff ROBERT ROSS was diagnosed with asbestos-related pleural disease. On March 5, 2007, Mr. ROSS, filed an asbestos-related personal injury Action (No. CGC-07-274099) seeking damages resulting from his occupational exposure to asbestos and asbestos-containing products. This matter is scheduled for trial on April 2, 2012. In October, 2010, ROBERT ROSS was diagnosed with colon cancer. On December 17, 2010, ROBERT ROSS and JEAN ROSS filed a second personal injury action for damages suffered due to Mr. ROSS’s cancer diagnosis (No. CGC-10-275731). This matter is not yet scheduled for trial On December 14, 2010, all defendants in the initial personal injury action, CGC-07- 274099, were provided with amended standard interrogatory responses notifying them that Mr. ROSS had been diagnosed with colon cancer. At that time, the defendants in the initial action, CGC-07-274099, were also offered all medical records in plaintiffs’ possession. IL ARGU! A. CONSOLIDATION OF BOTH ROSS MATTERS WILL PROMOTE JUDICIAL ECONOMY, ERFICIENCY AND RESOURCES AND AVOID Both personal injury actions involve common questions of law and fact, including product identification, medical causation, applicability of various tests of product defect, and availability of various defenses. California Code of Civil Procedure § 1048(a) provides: When actions involving a common question of law or fact are pending before the court, it may order a joint hearing with any or all the matters in issue in the action; it may order ail the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. Md itajunsngnsmptipits ct confide cont 2 retarted MEMORANDUM OF POINTS AND. AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION TO CONSOLIDATE ACTIONS AND. CONTINUE THE TRIAL DATEAs acknowledged by the Judicial Council of California in the Deskbook on the Management of Complex Civil Litigation, “[t]rial courts have broad discretion to consolidate related cases for pretrial or trial purposes.” (Id, at § 2.03(2).) “Actions pending in the same cow involving common questions of law or fact may be consolidated for trial or pretrial purposes if this will avoid unnecessary cost or delay.” (Id, at § 2.61(3)©.) It is well settled that consolidation for the purpose of trial of related issues is appropriate. (McClure v. Donovan (1949) 33 Cal.2d 717, 722.) Where pending actions are consolidated for the purpose of trial of related issues, evidence presented in one case is deemed applicable to the other cases so far as it is relevant. (Id,) In addition, there is ample authority for the proposition that consolidation is proper even though the parties in the consolidated actions are not identical. (See, ¢.g., Judd Whitehead Heater Co. v. Obler (1952) 111 Cal-App.2d 861.) Consolidation is also warranted to avoid duplication of time and effort in the trial of related issues. (Neubrand y, Superior Court (1970) 9 Cal.App.3d 311, 322-323.) Furthermore, "a consolidation of actions does not affect the right of the parties. The purpose of the consolidation is merely to promote trial convenience and economy by avoiding duplication of procedure, particularly in the proof of issues common to both actions.” (Wouldridge v. Bums (1968) 265 Cal.App.2d 82, 86; see also Mueller v. J.C. Penney Co, (1985) 173 Cal.App.3d 713, 722 [purpose of consolidation is merely to promote trial convenience and economy].) Consolidation also will avoid inconsistent resolution of the same legal or factual issue. vi uni vy. Pi - ines Steel Co. (1983) 140 Cal.App.3d 251, 262 [statute permitting consolidation of contract arbitration proceedings was designed to promote “efficient settling of private disputes, judicial economy, and the avoidance of contrary results.”]) For example if there are separate trials, defendant in ROSS 2007 could be found liable in that matter but not liable in the ROSS 2010 matter. Or, defendant could be prejudiced in a separate ROSS 2007 trial from the fact of Mr. ROSS’s cancer being known to the jury, yet plaintiff is not seeking damages for cancer in ROSS 2007. Such facts would also contribute to potential prejudice to defendant because of Mr. ROSS’s claim for fear of cancer in the ROSS 2007 matter. KAujuees19340pldipa-muo cancolete-cont tol wp 3 JAM MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION TO CONSOLIDATE ACTIONS AND CONTINUE THE TRIAL DATE,Oo CY DHRU BR WN RN YN RP NN RM Re Ee me Be ew ee ee om BW He BY NHN KF SO ew SH RH BR BY NY KY SG Conversely, defendants may argue that a consolidated trial would somehow prejudice them, and that this Court should try each case on its own, There is nothing in defendants’ proposal that would either increase efficiency or protect defendants’ rights. Rather, the Court’s tried and true processes would grind to a halt. The parties, including defendants, would be saddled with much greater litigation costs and the delays would be enormous. This Court is best suited to determine the trial processes to be used in the cases. The Court will know which claims are going to be tried and what the particular disputed facts are related to those claims and how they may interact in ways promoting efficiency or in ways contrary to a just trial. Such consolidations are left to the sound discretion of the Court. (Fellner v. Steinbaum (1955) 132 Cal. App.2d 509, 511.) Indeed, there is no statute or case law that requires a formal noticed motion. This trial court has the authority to consolidate these cases even sua sponte. Both of the above-captioned actions pending before this Court arise from asbestos- related injuries suffered by plaintiff ROBERT ROSS. The factual basis underlying these cases is virtually identical, involving common witnesses, medical evidence and testimony. The cases also share many common issues of law such as the applicability of various tests of product defect and the availability of various defenses. The need for two trials, two different juries, added costs for all parties, use of judicial resources and inconsistent findings will be avoided if this Court consolidates these actions. Therefore, under C.C.P. §1048, this Court should consolidate these actions in order to avoid the unnecessary cost and delay involved in duplicating evidence and presenting two cases on substantially similar issues. B. BECAUSE OF THE UNIQUE FACTUAL AND PROCEDURAL FOR TRIAL BEYOND THE 3 YEAR CUT-OFF tM In addition to consolidating the two cases to save costs, avoid inconsistent results, and promote judicial efficiency and economy, plaintiffs also request the Court continue the trial date currently set in ROSS 2007 for April 2, 2012, and allow the consolidated case to be brought to trial under the time line prescribed for ROSS 2010, pursuant to C.C.P. section 583.310. fil Koi 924M ot pte te cancaldae con 1a wpe 4 JAN MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION TO CONSOLIDATE ACTIONS AND CONTINUE THE TRIAL DATEoe IY DH HW RB WwW HN | ybN PN NY NY NN Se eo 2 Yk REORRBSE CER ABEBHE AS C.C.P. section 583.340(c) provides a statutory extension beyond the 5-year deadline in bringing a case to trial where it is impossible, impracticable or futile. The impossible, impracticable, or futile exception to the 5-year period, developed by case law, was codified in 1984 in C.C.P. section 583.340©. Courts are to interpret C.C.P. section 583.340© liberally to promote the policy that favors trial on the merits. (Comment to C.C.P. § 583.340.) Because of the unique factual and procedural background of Mr. ROSS’s diagnosis of two separate asbestos- related diseases, it is impracticable to bring the case to trial under the ROSS 2007 trial date of April 2, 2012, because of the existence of ROSS 2010. Keeping the ROSS 2007 trial date will likely lead to difficulties with the defendants in ROSS 2010. Indeed, this is not a case where there are no court rooms available or the docket is congested and thus a continuance is requested. The necessity for a continuance beyond the 5- year statutory deadline evolves from the uniqueness of the facts presented here. The defendants in ROSS 2007 are sure to want to explore the nature and connection of the asbestos-related disease (colon cancer) triggering ROSS 2010. Further, the defendants in ROSS 2010 should not be accelerated to trial by virtue of the consolidation, as they too are sure to want to explore the nature and connection of the asbestos-related disease triggering ROSS 2007 (asbestos-related pleural disease). Here, plaintiffs have shown a causal connection between the circumstances of impracticability and bringing the case to trial by virtue of the uniqueness of the facts at issue. (Sierra-Nevada Mem.-Miners Hosp., Inc. v. Superior Court (1990) 217 Cal.App.3d 464, 473; see Tamburina v. Combined Ins. Co. of Am. (2007) 147 Cal.App.4th 323, 33 [unusually long illness deprived plaintiff and counsel of substantial portion of 5-year period].) Mr. ROSS’s diagnosis off his two separate diseases at two separate times creates a fact situation making it impossible or impracticable to bring the case, once consolidated, to trial under the current date of April 2, 2012] Comparatively, the 5-year statute may be tolled when a pending related action is being pursued on which the success of the present action depends. (Rose v. Knapp (1951) 38 Cal.2d. 114; Bosworth v. Superior Court (1956) 143 Cal.App.2d 775.) The Court may also use the criteria the California Supreme Court has enumerated for motions to dismiss under the 5-year KAtgjuresh 19349191 consofidate-cont tris) 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION TO CONSOLIDATE ACTIONS AND CONTINUE THE TRIAL DATEOo 8 NM OW WO Fe whe wow woh RoR RR ee sett &® RRR RRBBRBE SSS RKB EGBH TKS statute when another action is pending between some of the same parties as a result of the same incident or transaction (Brunze!l Constr. Co. v. Wagner (1970) 2 Cal.3d 545, 550): e The relationship between the causes of action; * The expense and difficulty likely to be created by separate trials; e Plaintiff's diligence and good faith efforts; . Prejudice or hardship to the defendant; and e Any other relevant facts the court deems important for the purpose of determining whether it would have been [or will be] impracticable and futile to bring the instant action to trial within the statutory period. Here: 1) both of Mr. ROSS’s diseases resulted from exposure to asbestos; 2) separate trials will cause great expense and difficulty, not only for the parties but for the judiciary; 3) plaintiffs have been actively and diligently pursuing their claims with good faith efforts; 4) no prejudice or hardships are present for defendants and in fact such a continuance would be beneficial in allowing more time; and 5) the unique factual and procedural background of Mr. ROSS’s diagnosis of two separate asbestos-related diseases at different times makes it impracticable to bring the case to trial under the ROSS 2007 trial date of April 2, 2012. Finally, the consolidation of the ROSS actions provides circumstances in which the impossibility, impracticability, and futility exception should be applied to toll the 5-year period. (CCP. §583.340©; General Motors Corp. v. Superior Court (1966) 65 Cal.2d 88 [consclidation ofa personal injury action with a later accruing wrongful death action tolled the 5-year period to bring the matter to trial].) Thus, te effectuate substantial justice, plaintiffs respectfully request this Court continue the trial date pursuant to the time lines controlling ROSS 2010. if Hi iW Uf Kalnjuea sta console cont wa 6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUP! - IN TO Me PRE TRIAL DEE PORT OF PLAINTIFFS’ MOTIO} CONSOLIDATE ACTIONS ANDCo Mm I DA A FF WN CONCLUSION For the foregoing reasons, plaintiffs respectfully request that plaintiffs’ Motion to Consolidate Action No. CGC-07-274099 and Action No. CGC-10-275731 be granted and that the trial date of April 2, 2012 be continued. Dated: March 13, 2012 BRAYTON*PURCELL LLP in Jamie A. Newbold Attomeys for Plaintiffs injared a te-comltyisl wpd 7 MEMORANDUM OF POINT! a CONTINUE THe TAL BE AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION TO CONSOLIDATE ACTIONS AND.