Order: JOYCE JUELCH, ET AL VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al

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LEWIS BRISBOIS BISGAARD & SMITH LLP
CAMILLE K. FONG, SBN 113123

JOHN A. HOLMAN, SBN 176947 ELECTRONICALLY
One Sansome Street, Suite 1400 FILED
San Francisco, California 94104 Superior Court of California
Telephone: (415) 362-2580 County of San Francisco
Facsimile: (415) 434-0882

wo coREE 81.2009...
Attorneys for Defendant BY: LUCIARAMOS er
KAISER GYPSUM COMPANY, INC. Deputy Clerk

COUNTY OF SAN FRANCISCO

JOYCE JUELCH, et al. CASE NO. 275212

Plaintiffs, DEFENDANT KAISER GYPSUM
COMPANY, INC.’S CONDITIONAL NON-
OPPOSITION TO PLAINTIFFS’ MOTION
FOR ORDER GRANTING PREFERENCE
IN SETTING CASE FOR TRIAL, AND

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ASBESTOS DEFENDANTS (BP), et al.

Defendants. [C.C.P, §36(d)]

Date: December 22, 2009
Time: 9:30 a.m.

Dept: 206

Judge: Hon. James McBride

Action Filed: May 20, 2009
Trial Date: None
Defendant KAISER GYPSUM COMPANY, INC. (“Defendant”) submits a conditional
non- opposition to Plaintiffs’ Motion for Preference pursuant to California Code of Civil
Procedure §36(d) (“Motion”).
L STATEMENT OF FACTS
Plaintiffs move for trial preference within 60 days pursuant to C.C.P. §§ 36 (d) based solely
on the declaration of plaintiff's treating physician Dr. Promila Dhanuka. Although the court may
in its discretion grant preference upon a showing of “clear and convincing” medical evidence that a
party suffers from an illness “raising substantial medical doubt of survival beyond 6 months”, the
declaration of Dr. Dhanuka states plaintiff may not survive 6 months within a reasonable degree of

4843.0543-0021.) -l-

KAISER GYPSUM COMPANY, INC.’S CONDITIONAL NON-OPPOSITION TO PLAINTIFFS’ MOTION FOR
ORDER GRANTING PREFERENCEOo © NY DW BR BW No

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“medical probability.” Dr. Dhanuka’s declaration simply does not adequately demonstrate a need.
for a trial date within 60 days or sufficiently set forth the medical conditions that require a trial
preference. Additionally, should the Court decide to grant preference, Defendants request a trial
date of 120 days and provide discovery deadlines and shortened time to file motions for summary
judgment.

IL ARGUMENT

A. Defendant Opposes a Trial Date in 60 Days Time

Plaintiffs now move for Preference pursuant to CCP §36(a) and have requested a trial date
within 60 days. It is unclear from the moving papers whether Plaintiffs are requesting a trial date
60 days from the filing of the motion or 60 days from the hearing on the motion. Irregardless,
neither provides enough time for this Defendant to prepare for trial, A defendant’s Due Process
rights must be preserved to allow defendant adequate time to prepare to defend its case at trial.
(Palibrid Coatings, Inc. v. Superior Court (Cal.App.4th Dist. Sept. 24, 2003) (NO. G032459), as
modified (Oct. 21, 2003) 112 Cal. App.4th 920). In Sprowl v. Superior Court (1990) 219
Cal. App.3d 777, 780, citing Rice v. Superior Court (1982) 136 Cal.App.3d 81, 88-91, the Court
acknowledged that a party’s right to preference is not absolute. The Court must consider prejudice
to defendants and whether the case involves complex issues surrounding product identification,
causation and substantial factor in determining whether a request for an early trial will severely and
irreparably prejudice Defendant.

In light of Plaintiffs’ disclosure that Joyce Juelch’s health prognosis is poor and her ability
to participate in his defense is diminishing, Defendant anticipates that evidence developed from
other fact witnesses will become all the more crucial. This case involves complex issues
surrounding product identification as to plaintiff's alleged exposure to asbestos, causation and
substantial factor as to the cause of her lung cancer. There is still substantial outstanding medical
and factual discovery, including the scheduling and completion of depositions of potential
percipient witnesses who may have information and knowledge regarding plaintiff's alleged
asbestos exposure, depositions of treating physicians, and medical and non-medical expert
witnesses. Defendants further anticipates that any product witness depositions will identify other

4843-0543-0021.1 -2-

KAISER GYPSUM COMPANY, INC.*S CONDITIONAL NON-OPPOSITION TO PLAINTIFFS’ MOTION FOR,
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sources of information or witnesses that will require additional discovery and investigation into
plaintiffs work history.

A trial date any sooner than 120 days of the hearing date will prejudice Defendant’s Due
Process Rights under the United States and State of California Constitutions by severely impairing
Defendant’s ability to conduct adequate discovery and prepare for trial. Defendants, therefore,
requests that the trial date be set at least 120 days from the hearing date.

Defendants further request that the Court order Plaintiffs to serve on each defendant a
pared-down list of product identification, causation third-party witnesses and documents they
intend to use at trial at least 60 days prior to trial., and that they must produce for deposition the
identified third-party witnesses at least 50 days prior to trial.

Defendants also request that as a condition of granting preference, the parties stipulate that
summary judgment motions may be heard up to and including 15 days before trial on 15 days °
notice, and not be limited to being heard 15 days before trial on 15 days notice as outlined in
Plaintiffs’ proposed order accompanying their Preference motion.

TH. CONCLUSION

‘The interests of justice dictate that the Court requires sufficient declaration testimony from
Dr. Dhanuka prior to setting preference or set this matter 120 days from the date of the hearing on
this Motion to allow all parties to have an opportunity to conduct adequate discovery in this matter
before trial. Therefore, if the Court grants preference, Defendants respectfully request that it do so

only in conjunction with the appropriate conditions as outlined above.

DATED; November 30, 2009 LEWIS BRISBOIS BISGAARD & SMITH LLP

By /s/ John A. Holman
John A. Holman
Attomeys for
KAISER GYPSUM COMPANY, INC.

4843-0543-0021.3 Be

KAISER GYPSUM COMPANY, INC.’S CONDITIONAL NON-OPPOSITION TO PLAINTIFFS’ MOTION FOR
ORDER GRANTING PREFERENCEDW oO NW Uh & BW Ne

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TELEPHONE (415) 362-2580

SAN FRANCISCO, CALIFORNIA 94104

Lewis BrisBois BISGAARD & SMITH LLP
ONE SANSOME STREET, SUITE 1400

Joyce Juelch v. Asbestos Defendants, et al.
San Francisco County Superior Court Case No. 275212

PROOF OF SERVICE BY ELECTRONIC TRANSMISSION
STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO

Lam employed in the County of San Francisco, State of California. 1 am over the age of 18
and not a party to the within action. My business address is One Sansome Street, Suite 1400, San
Francisco, California 94104.

On December 1, 2009, I electronically served (E-Service) via LexisNexis File and Serve
pursuant to General Order No. 158, the following document described as:

DEFENDANT KAISER GYPSUM COMPANY, INC.’S CONDITIONAL NON-
OPPOSITION TO PLAINTIFFS’ MOTION FOR ORDER GRANTING PREFERENCE IN
SETTING CASE FOR TRIAL, AND EXTENDING DISCOVERY CUTOFF [C.C.P.§36(d)]

on all interested parties in this action by placing [X]atrue copy [  ] the original thereof enclosed
in sealed envelopes addressed as follows:

BRAYTON “PURCELL LLP
222 Rush Landing Road

PO Box 6169

Novato, California 94948
Telephone: (415) 898-1555
Facsimile: (415) 898-1247

The above document was transmitted by Lexis-Nexis E-Service and the transmission was
reported as complete and without error

[X] (STATE) I declare under penalty of perjury under the laws of the State of California that
the above is true and correct

4813-5266-3553.2

PROOF OF SERVICE