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

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ATTORNEYS AT LAW
222 RUSH LANDING ROAD
P OBOX 6169
NOVATO, CALIFORNIA 94948-6169
(415) 898-1555
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BRAYTON@PURCELL LLP

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DAVID R. DONADIO, ESQ., S.B. #154436
JAMIE A. NEWBOLD, ESQ., S.B. #207186
BRAYTON%PURCELL LLP

Attorneys at Law

222 Rush Landing Road

P. O. Box 6169

Novato, California 94948-6169

(415) 898-1555

Attomeys for Plaintiffs

herein; and DOES 1-8500.

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

MAR 13 2012

Clerk of the Court
BY: VANESSA WU

PLAINTIFFS’ MOTION FOR ORDER TO.

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 EX
vs. PARTE APPLICATION TO
CONSOLIDATE ACTIONS AND
C.C. MOORE & CO. ENGINEERS; CONTINUE THE TRIAL DATE, OR
Defendants as Reflected on Exhibit 1 ALTERNATIVELY FOR ORDER
attached to the Summary Complaint SHORTENING TIME TO NOTICE

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CONSOLIDATE ACTIONS AND TO
CONTINUE THE TRIAL DATE

(C-CP. §1048(a); C.CP.§583.340(0)]

Date: March 13, 2012

Time: 11:00 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

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF BCPARTE APPLICATION TO CONSOLIDATE ACTIONS AND.

CONTINUE THE TRIAL

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At the Court’s request, plaintiffs ROBERT ROSS and JEAN ROSS 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, 2012 pursuant to C.C.P. section 583.3406, to one prescribed by the time line of ROSS
2010, pursuant to C.C.P. section 583.310.

L
STATEMENT OF FACTS

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 net yet
scheduled for trial

On December 14, 2010, all defendants in the initial personal injury action, CGC-07-
274059, 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-67-274099, were also offered ali medical records in plaintiffs” possession.

I.

ARGUMENT

A. CONSOLIDATION OF BOTH ROSS MATTERS WILL PROMOTE
JUDICIAL ECONOMY, EFFICIENCY AND RESOURCES AND AVOID
INCONSISTENT OUTCOMES

Code of Civil Procedure § 1005(b) provides:

.-. "[t]he court, or a judge thereof, may prescribe a shorter time" than the 16 court day
plus 5 calendar days for mailing set by C.C,P § 1005{a) to notice a motion by mail.
California Rules of Court Rule 3.1300(b) allows that upon a showing of good cause in
an affidavit or declaration the court may issue an order shortening time to notice a
motion. An ex parte application is a proper method by which to seek an order shortening,
time to serve notice of a motion. Witkin, Cal. Proc. 4th §§ 15,54; Weil & Brown, Cal.
Prac. Guide, Civ. Proc. Before Trial 9:347.

KAtnjarot 1934 -conso ate 2

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION TO CONSOLIDATE ACTIONS AND
CONTINUE THE TRIAL DATE, OR ALTERNATIVELY FOR ORDER SHORTENING TIME TO NOTICE PLAINTIFFS’ MOTION FOR
ORDER TO CONSOLIDATE ACTIONS AND TO CONTINUE THE TRIAL DATEBoth 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 commen 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 all the actions consolidated and it may make such orders

songemins proceedings therein as may tend to avoid unnecessary costs or

As 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 court
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 § 2.61G)©.)

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, e.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 v. 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 te promote trial convenience and economy by avoiding duplication of procedure,
particularly in the proof of issues common to both actions." (Wouldridge v. Burns (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.

(Garden Grove Community Church v, Pittsburgh-Des Moines Steel Co. (1983) 140 Cal.App.3d

251, 262 [statute permitting consolidation of contract arbitration proceedings was designed to

Noises 19349) soldat 3

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION TO CONSOLIDATE ACTIONS AND
CONTINUE THE TRIAL DATE, OR ALTERNATIVELY FOR ORDER SHORTENING TIME TO NOTICE PLAINTIFFS’ MOTION FOR
ORDER TO CONSOLIDATE ACTIONS AND TO CONTINUE THE TRIAL DATE.Pw ID DA HW fF WH

promote “efficient settling of private disputes, judicial economy, and the aveidance of contrary
results.”]) For example if there are separate trials, defendant in ROSS 2007 could be found liablq
in that matter but not liable in the ROSS 2010 matter. Or, defendant could be prejudiced ina
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.

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.

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B. BECAUSE OF THE UNIQUE FACTUAL AND PROCEDURAL
BACKGROUND, THE COURT SHOULD EXTEND THE TIME
FOR TRIAL BEYOND THE 5 YEAR CUT-OFF

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 $83,310.

C.C.P, section 583.340© 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 583.3400 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 S~year period].) Mr. ROSS’s diagnosis

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION TO CONSOLIDATE ACTIONS AND

CONTINUE THE TRIAL DATE, OR ALTERNATIVELY FOR ORDER SHORTENING TIME TO NOTICE PLAINTIFES: MOTI
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of 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

statute when another action is pending between some of the same parties as a result of the same

incident or transaction (Brunzell Constr, Co. v. Wagner (1970) 2 Cal.3d 545, 550):
* The relationship between the causes of action;

e The expense and difficulty likely to be created by separate trials;
e Plaintiff's diligence and good faith efforts;
e Prejudice or hardship to the defendant; and
° 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.

{C.C.P. §583.340©; General Motors Corp. v. Superior Court (1966) 65 Cal.2d 88 [consolidation
ofa personal injury action with a later accruing wrongful death action tolled the 5-year period to

bring the matter to trial].)

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Thus, to effectuate substantia! justice, plaintiffs respectfully request this Court continue
the trial date pursuant to the time lines controlling ROSS 2010.
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, or alternatively that the Court shorten time to notice 4

motion regarding the same.
Dated: March 12, 2012 BRAYTON*PURCELL LLP
By
Jamie A. Newbold
Attorneys for Plaintiffs
KNnioredi93 2. 7
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION 10 CONSOLIDATE ACTIONS AND

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ORDER TO CONSOLIDATE ACTIONS AND TO CONTINUE THE TRIAL DATE TO NOTICE PLAINTIFFS’ MOTION FOR