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

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                                GEORGE D. YARON, ESQ, (State Bar #96246)

KEITH E. PATTERSON, ESQ. (State Bar #225753) ELECTRONICALLY
MICHAEL J. PENG, ESQ. oa Bar #260852)
YARON & ASSOCIATES . FI LE D /
601 California Street, 21% Floor Superior Sourt of Califonia,
San Francisco, California 94108-2281 ounty of San Francisfo
‘Telephone: (415) 658-2929 DEC 07 200
Facsimile: (415) 658-2930 GORDON PARK-LI, Clerk
BY: ALISON AGBAY
Attorneys for Defendant Deputy Clerk
84 LUMBER COMPANY

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO

JOYCE JUELCH and NORMAN JUELCH, SR.,) CASE NO. CGC-09-275212

Plaintiffs, DEFENDANT 84 LUMBER
COMPANY’S OPPOSITION TO
PLAINTIFFS’ MOTION FOR ORDER
GRANTING PREFERENCE FOR
TRIAL SETTING

[C.CP. § 36]

Date: December 22, 2009
Time: 9:30 am.

Room: 206

Judge: Hon. James J. McBride

Action Filed: May 20, 2009
Trial Date: Not Assigned

Vv.

ASBESTOS DEFENDANTS (B#P) and
DOES 1-8500,

Defendants.

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Defendant 84 Lumber Company (“84 Lumber”) hereby submits the following Opposition
to Plaintiffs Joyce Juelch and Plaintiff Norman Juelch’s (“Plaintiffs”) Motion for Order Granting
Preference in Setting Case for Trial.

1. INTRODUCTION

Defendant 84 Lumber opposes Plaintiffs’ Motion for a Preferential Trial Date, Code of Civil
Procedure (“C.C.P.”) § 36(d). Plaintiffs seek an Order for setting this matter for trial within 60
days. However, it is unclear whether Plaintiffs seek such Order from the Motion’s hearing date or
the date their Motion was filed. Nonetheless, granting Plaintiffs’ Motion will deprive 84 Lumber,

and similarly situated Defendants, of any meaningful opportunity to prepare for trial and, thus,

Oppasition to Plaintiff's Motion For Preference 1. GA3265\Pleadings\Opp.PreAPa&a.2.wpdwould not serve the interests of justice. Therefore, 84 Lumber respectfully that the Court deny
Plaintiffs’ Motion in its entirety.

In the alternative, if the Court is inclined to grant the Motion, 84 Lumber requests that trial
be set no sooner than 120 days from the granting of Plaintiffs’ Motion. Such time is necessary,
because a substantial amount of discovery remains to be conducted.

Much of the factual information pertaining to Plaintiffs’ allegations must be developed
through taking the depositions of 15 percipient witnesses named by Plaintiff in her deposition and
Responses to Standard Interrogatories. This includes Plaintiff Joyce Juelch’s ex-husband, John
Chambers, with whom she allegedly built a house and assisted while replacing brake drums and
gaskets, thereby exposing her to asbestos in the early 1970s. It also includes 14 other percipient
witnesses identified by Plaintiff, who allegedly have information and knowledge regarding her
alleged asbestos exposure while working as an insulator from 1982 to 1985.

Defendants must also take the depositions of Plaintiff Joyce Juelch’s 6 treating physicians,
who have recently treated her for multiple illnesses, including her heart and lung conditions.

Additionally, Defendants must propound further written discovery regarding information
revealed in Plaintiffs’ depositions about Plaintiff Joyce Juelch’s exposure to asbestos, and
Defendants must procure records from the City of Stockton, CA pertaining to a house Plaintiff
allegedly built with John Chambers, in the early 1970s, in Stockton, CA.

To date, none of this discovery has concluded and, as such, there is still substantial
outstanding medical and factual discovery to be conducted, Given the complexity of the facts
surrounding this case, Defendants should be given as much time as possible to prepare for trial.
Otherwise, Defendants would be denied a fair trial.

i. FACTUAL AND PROCEDURAL BACKGROUND

On May 20, 2009, Plaintiffs filed their Complaint for personal injury against 84 Lumber and
37 other Defendants, as well as 8,500 “DOE” Defendants, alleging causes of action based upon
Negligence, Strict Liability, False Representation, and Loss of Consortium. (See Plaintiffs’
Complaint (“Complaint”), attached as Exhibit “A” to the Declaration of Michael J. Peng (“Peng
Decl.”), | 3.)

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In her Complaint, Plaintiff Joyce Juelch alleges that she developed ung cancer as a result
of exposure to asbestos from the following: (1) working as a nurse at several hospitals from 1964
to 1976, (2) working as a janitor at the Naval Supply Depot in Stockton, CA, in 1966, (3) working
as an insulator at various job sites in Northern California, from 1982 to 1992, (4) from para-
occupational exposure from the work of her second and third husbands, John Chambers and
Norman Juelch, Sr., to whom she was married from 1967 to 1978 and 1981 to present, respectively,
and (5) non-occupational exposure as a result of an alleged home construction in the early 1970s,
and from helping her ex-husband, John Chambers, and her current husband, Plaintiff Norman
Juelch, Sr. with the removal and replacement of brakes on vehicles in the early 1970s and 1980s,
respectively. {Plaintiffs’ Complaint, 5:2 - 9:6.)

On June 12, 2009, Plaintiff Joyce Juelch served a copy of her Responses to Defendants’
Standard Interrogatories, Set One. (See Plaintiff's Responses to Defendants’ Standard
Interrogatories (Set One), attached as Exhibit “C” to the Peng Decl., 46.) In her responses, Plaintiff
identified the following 14 witnesses who may have knowledge regarding her work as an insulator
for various employers: Steve Steele, Carl Ramsey, Steve Bass, Wiley Utterback, Phil Black, Robert
Calvillo, Thomas Begley, Mel Swanson, Maurice Lawrence, Hank Freeman, John Murphy, Ken
Goforth, Larry Sublet, and Don Bass. Ud. at 11:7-22:11.) Plaintiff also identified the following
physicians, from whom she has received treatment for cancer and/or other respiratory conditions:
Dr, Dhanuka, Dr. Gills, Dr. Luperpio, Dr. Hahns, Dr. Balazer, and Dr. Karem. (Jd. at 3:26-7:12.)

On August 24, 2009, 84 Lumber served upon Plaintiff Joyce Jueich its Form Interrogatories,
Special Interrogatories, Requests for Identification and Production of Documents, and Requests for
Admission. (Peng Decl., 7.) 84 Lumber received Plaintiff's responses to its discovery requests
on September 29, 2009. (ld)

On August 28, 2009, defense counsel noticed the Deposition of Plaintiff Joyce Juelch for
September 15 through 18, 2009. (Notice of Taking the Deposition of Plaintiff Joyce Juelch,
attached as Exhibit “D” to the Peng Decl., 78.) Plaintiff Joyce Juelch’s Deposition commenced
on September 15, 2009. (Peng Decl., 99.) However, her Deposition was subsequently delayed 61

days at the request of Plaintiffs’ counsel, and it did not conclude until November 24, 2009. (id)

Opposition to Piaintiff"'s Motion For Preference 3. G:13265\P leadings\Opp. PreAP&A.2.wpdSD Oe MN DH RB BW YW HE

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In her deposition, Plaintiff Joyce Juelch named various percipient witnesses, including those
witnesses identified in her Responses to Defendants’ Standard Interrogatories, Set One. (Peng
Deci., 10.) Plaintiff also disclosed that the house she allegedly built with her second husband,
John Chambers, was located at 1982 or 1984 8. Adelbert Avenue, in Stockton, CA. (fd) Plaintiff
Norman Juelch’s Deposition went forward on December 1, 2009 and concluded on December 3,
2009, (Peng Decl., { 11.)
Il. LEGAL ARGUMENT

California Code of Civil Procedure § 36 provides, in pertinent part:

(a) In its discretion, the court may also grant a motion for preference that is accompanied

by clear and convincing medical documentation that concludes that one of the parties suffers

from an iliness or condition raising substantial medical doubt of survival of that party
beyond six months, and that satisfies the court that the interests of justice will be served

by granting the preference. (Emphasis added.)

Notably, under C.C.P. § 36(d), the Court cannot grant a Motion for Preference simply
because the Motion is accompanied by medical documentation, nor simply because the party suffers
from a malignant disease. As provided in the statute’s text, the party must also require the trial
preference in order to serve the interests of justice.

A. The Interests of Justice Would Not Be Served by Granting Plaintiffs’ Motion for

Preference, Because Defendants Have Not Had Adequate Time to Complete
Discovery or Prepare and File Any Appropriate Dispositive Motions

The U.S. Constitution establishes that no state shall “deprive any person of life, liberty, or
property, without due process of law.” (U.S. Const., Amend. XTV, §1.) Under this provision,
corporations are deemed persons within the meaning of the 14" Amendment, forbidding that they
be deprived of process of law. (Covington & L. Turnpike Road Co. y. Stanford (1986) 164 U.S.
578; Grosjean v, American Press Ca. (1936) 297 U.S. 233; Louis K. Liggett Co. v, Baldridge
(1933) 288 U.S. 517).

The California Constitution contains a mandate similar to that of the U.S. Constitution,
which establishes that “[a] person may not be deprived of life, liberty, or property without due
process of law...” (Cal. Const., Art. I, § 7.) It follows that corporations obtain the same

protections under the California Constitution as they do under the U.S. Constitution, because, as

Opposition to Plaintifi’s Motion For Preference 4. GA3265\Pleadings\Opp.PreAP&A.2. wpdSo we NAW RB HW BYE

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stated in Ryan v. California Interscholastic Federation — San Diego Section (2001) 94 Cal. App.
4" 1048, 1069, “due process under the California Constitution is ‘much more inclusive’ and
protects a broader range of interests than under the federal Constitution.” (Citing People v. Ramirez
(1979) 25 Cal.3d 260, 268.)

The granting of Plaintiffs’ Motion for Preference under the facts of this case would violate
Defendants’ Due Process rights, as established under both the U.S. Constitution, Amend, XTV, and
the California Constitution, Art. I, § 7. Setting the trial for 60 days from the filing, or the hearing
date, of the Motion for Preference will deprive Defendants of an adequate amount of time to
complete discovery, and prepare for trial, thereby depriving them of their Due Process rights.

In evaluating a Motion for Trial Preference, the Court is required to “view the total picture,
including the dilatory action of the plaintiff, the condition of the court’s calendar, the rights of other

litigants, and the prejudice to the defendant...” (Wilson v. Sunshine Meat & Liquor (1983) 34

Cal.3d 554, 561; emphasis added.) In fact, prior to setting a case for trial, the Court must consider
the amount of discovery that remains to be conducted in the case. (C.R.C., Rule 3.729(14).) The
United States Supreme Court has recognized that due process requires a party to have an “adequate
opportunity to defend against the imposition of liability.” (Nelson v. Adams USA, Ine, (2000) 529
U.S. 460, 466.)

Additionally, the Court in Greyhound Corp. v. Sup. Ct. (1961) 56 Cal.2d 355, stated that
civil discovery statutes, under which all parties operate, are intended:

(1) to give greater assistance to the parties in ascertaining the truth. . . (2) to provide an

effective means of detecting and exposing false, fraudulent and sham claims and defenses.

. . (4) to educate the parties in advance of trial as to the real value of their claims and

defenses, thereby encouraging settlements; (5) to expedite litigation; (6) to safeguard against

surprise; (7) to prevent delay; (8) to simplify and narrow the issues; and (9) to expedite and

facilitate both preparation and trial. (Greyhound, supra, 56 Cal.2d at 376.)

Here, Defendants have not had adequate time to fully conduct discovery or adequately
prepare for trial, because substantial discovery regarding percipient and product identification
witnesses, medical and non-medical expert witnesses, and Plaintiffs’ employment and medical
records must still be conducted. Without the opportunity to conduct all necessary discovery and

pretrial preparation, Defendants would effectively be deprived of their right to prepare for trial,

Opposition to Plaintiff's Motion For Preference 5. G:A3265\Pleadings\Opp.Pref\P&A.2.wpdCo eB RAH BY Be

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thereby effectively denying them due process of law. (See Peters v. Superior Court (1989) 212
Cal.App.3d 218, 227.) Such a deprivation certainly would not serve the interests of justice.

First, Defendants must have adequate time to depose all percipient and product
identification witnesses and Plaintiff's treating physicians, Plaintiffs’ allegations stem fiom Joyce
Juelch’s alleged exposure to asbestos over a 28-year period, (See Plaintiff's Responses to Standard
Interrogatories, 9:25-22:22, attached as Exhibit “C” to the Peng Decl., 4 6.) During that time,
Plaintiff Joyce Juelch worked as a nurse, a janitor, and as an insulator at various job sites in
Northern California. Ud.) She claims multiple sources of exposure including direct and para-
occupational exposure to asbestos. (/d.)

Defendants must have adequate time to depose Plaintiffs second husband, John Chambers,
because Plaintiff claims a substantial amount of para-occupational and non-occupational exposure
related to his work. Plaintiff claims exposure through John Chamber’s work, as a mechanic and
insulator, at various job sites in California and Nevada, from 1971 to 1977. (/d.) Furthermore,
Plaintiff claims non-occupational exposure from assisting him build a house, in the early 1970s, in
Stockton, CA. (d.)

Defendants must also have adequate time to depose 14 witnesses identified by Plaintiff in
her deposition and Standard Interrogatory Responses. ‘These witnesses allegedly have information
telated to Plaintiff's work as an insulator and her alleged exposure at various work sites throughout
her career. These witnesses include the following 14 people named by Plaintiff: Steve Steele, Carl
Ramsey, Steve Bass, Wiley Utterback, Phil Black, Robert Calvillo, Thomas Begley, Mel Swanson,
Maurice Lawrence, Hank Freeman, John Murphy, Ken Goforth, Larry Sublet, and Don Bass.

Additionally, Defendants must depose Plaintiff’ s treating physicians regarding the medical
treatment they provided, and the suspected causes of her lung and heart injuries. These include the
following 6 doctors: Dr. Dhanuka, Dr. Gills, Dr. Luperpio, Dr. Hahns, Dr. Balazer, and Dr, Karem,
(Peng Decl., {{] 6 and 10.) Therefore, it is imperative that Defendants be given sufficient time to
depose them prior to trial.

Second, based upon additional information provided through Plaintiffs’ depositions,

Defendants must be given at least 45 days to propound further discovery requests, obtain responses,

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and bring any appropriate motion to compel discovery responses, should it be warranted.
Accordingly, more than 45 days could pass before Defendants are even served with any further
information pertaining to Plaintiffs’ claims in this case.

Third, Defendants must also have adequate time to propound discovery pertaining to the
other Defendants in this lawsuit once they are ascertained. As is common with asbestos litigation,
the prospect that Plaintiffs will name other Defendants at a future date suggests that discovery will
reveal information with respect to these additional Defendants such that 84 Lumber, and possibly
other Defendants already named, may file a Cross-Complaint against the Defendants yet to be
named. This discovery is necessary, because under California’s Proposition 51 (Cal. Civ. Code
§§1431 et. seq.), Plaintiff's prolonged 28-year period of exposure would decrease the proportionate
share of 84 Lumber and other Defendants’ potential liability, because of the large number of
opportunities for alternate occupational exposure.

Fourth, Defendants must have adequate time to procure and review building records for the
house allegedly built by Plaintiff and ber second husband, John Chambers, in Stockton, CA in the
early 1970s. (Peng Decl., § 10.)

Finally, Defendants must also have adequate time to subpoena, obtain, and review Plaintiffs’
employment records and Joyce Juelch’s medical records. Once received, these materials must be
reviewed by Defense medical experts. [tis essential that Defendants obtain Plaintiffs’ employment
records and Joyce Juelch’s medical records prior to trial.

Clearly, this case involves complex issues surrounding product identification as to Plaintiff
Joyce Juelch’s alleged exposure to asbestos, causation, and substantial factor as to the cause of her
tung cancer. Although Plaintiffs have been deposed in this case, much of the factual basis for their
allegations will likely be derived from the deposition testimony of percipient witnesses.

B. Should the Court Grant Plaintiffs’ Motion, It Should Be Conditional

Defendants must be provided ample time to prepare and file any appropriate dispositive
motions prior to trial. Should the Court grant Plaintiffs’ Motion, it may effectively deny Defendants
the option of filing a dispositive motion pursuant to C.C.P. § 437(c) (“Summary Judgment

Motion”), since the Code requires 75 days notice and mandates that the last date upon which the

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motion may be heard is 30 days prior to the trial date. To allow the filing of Motions for Summary
Judgment, 84 Lumber requests that if the Court grants Plaintiffs’ Motion, such motions be heard
15 days prior to the trial date, upon 15 days notice to all parties. Only if Plaintiffs stipulate to the
filing of Motions for Summary Judgment on shortened notice can this happen. Furthermore, 84
Lumber requests that trial be set no sooner than 120 days from the granting of Plaintiffs’ Motion.
Such time is necessary so that Defendants are given the opportunity to conduct a minimal amount
of discovery to be satisfactorily prepared for trial.
Tv. CONCLUSION

The interests of justice will only be served if ll parties have an opportunity to learn the facts
surrounding Plaintiffs’ claims and to conduct appropriate and necessary discovery. ‘The granting
of Plaintiffs’ Motion will cause substantial hardship and prejudice to the Defendants in that
procurement of evidence or written discovery has not been completed, and no depositions of other
percipient witnesses have been taken. Thus, for the foregoing reasons, 84 Lumber respectfully
requests that the Court deny Plaintiffs’ Motion for preference without prejudice.

Should the Court be inclined to grant Plaintiffs’ Motion, 84 Lumber respectfully requests
that the Court condition the granting of the Motion upon the following: 1) this case be set for trial
no sooner than 120 days from the date of the hearing on this Motion, 2) discovery, including expert
discovery, is to remain open until the case is assigned to a court room, and 3) that dispositive
motions be heard 15 days prior to the trial date, upon 15 days notice to all parties.

DATED: December 7, 2009 YARON ASSOCIATES

Attdmeys for Defendant
84 Lumber Company

Opposition to Plaintii?’s Motion For Preference 8 GA3265\Pleadings\Opp.PreNP&A.2.wpdPROOF OF SERVICE
Tam over 18 years of age and not a party to the within action. I am employed in the County
of San Francisco; my business address is Yaron & Associates, 601 California Street, 21st Floor, San
Francisco, California 94108-2826.

On December 7, 2009, at or about, 3:45 pm, I served the within:

DEFENDANT 84 LUMBER COMPANY’S OPPOSITION TO PLAINTIFFS’
MOTION FOR ORDER GRANTING PREFERENCE FOR TRIAL SETTING

addressed to:

All Parties As Listed on the LexisNexis Service List

VIA E-MAIL OR ELECTRONIC TRANSMISSION. Based on a cout order or

an agreement of the parties to accept service by e-mail or electronic transmission, [ caused the documents
to be sent to the persons at the e-mail addresses listed above, I did not receive, within a reasonable time
after the transmission, any electronic message or other indication that the transmission was unsuccessful.

I declare under penalty of perjury under the laws of the State of California that the foregoing
is true and correct, and that this declaration was executed on December 7, 2009, at San Francisco,
California.

/sf Marisela H. Navarro

MARISELA H. NAVARRO
MNAVARRO@YARONLAW.COM