Motion-Secondary: CHARLES HUSBAND VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON EXHIBITS

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                                PO BOX 6169
NOVATO, CALIFORNIA 94948-6169
(415) 898-1585

ATTORNEYS ATLAW

222 RUSH LANDING ROAD

BRAYTON@ PURCELL LLP

Coe NR KH NW PB wWN

10

ALAN R. BRAYTON, ESQ., S.B. #73685

DAVID R. DONADIO, ESQ., 8.B. #154436 ELECTRONICALLY

NANCY T. WILLIAMS, ESQ., S.B, #201095

CHRISTINA D. HART, ESQ, S.B. #236548 FILED

BRAYTON*PURCELL LL. Superior Court of California,

Attorneys at Law County of San Francisco

3 Rush Landing Road OCT 15 2013
AQ. OX

Novato, California 94948-6169 oclerk of the Court

(415) 898-1555 Deputy Clerk

Attomeys for Plaintiff

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

CHARLES HUSBAND,
Plaintiff,

ASBESTOS
No. CGC-09-275098

MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
APPLICATION FOR ENTRY OF
DEFAULT JUDGMENT AGAINST
DEFENDANT MARINE ENGINEERING
AND SUPPLY COMPANY

Date: January 14, 2014

Time: 9:00 a.m.

Room: 514, Hon. Donald Sullivan
Filing Date: March 2, 2009

Trial Date: Not Applicable

INTRODUCTION
Defendant MARINE ENGINEERING AND SUPPLY COMPANY (hereinafter

vs.

ASBESTOS DEFENDANTS (BP)

ee

“MARINE”), was an industrial insulation contractor in California. MARINE’s work was not
limited to ships but also included other industries such as insulation of refineries. In their
insulation work, MARINE primarily used John Mansville and Celotex asbestos-containing
insulation.

This action for damages arises from the asbestos related injury of CHARLES
HUSBAND. Plaintiff filed a Complaint for Personal Injury naming MARINE as one of several
defendants. The Complaint and the Work History attached thereto as Exhibit A, set forth the

employment history of plaintiff, evidencing his exposure to asbestos caused by MARINE. TheoO me YN DH BF WN

operative summons, complaint and Statement of Damages were served on defendant and
defendant has failed to defend or otherwise appear in this action. Plaintiffs have filed proof of
service of summons on defendant as well as a request for entry of default and Statements of
Damages and all other required supporting documents. Default has been entered. (See Request
for Entry of Default with supporting documents attached to the Declaration of Nancy T.
Williams as Exhibit B.) Plaintiff hereby brings this motion for default judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff is a career Carpenter suffering from Asbestosis and Pleural Disease which are

associated with asbestos exposure, (Complaint, Ex. A.; Report of Herman R. Bruch, MD,
attached as Exhibit “A” to Declaration of Nancy T. Williams.) He brought this personal injury
on March 2, 2009 seeking recovery from various entities responsible for his exposure to
asbestos, including MARINE (Complaint, Ex. A.)

On April 12, 2011, the Court granted plaintiffs leave to file an Amendment to the
Complaint to substitute MARINE in name for DOEs 15 and 1008.

Qn May 13, 2011, the Court granted plaintiffs Application for Order directive service of
summons on MARINE by delivery of process to the Secretary of State of California.

On January 10, 2012 MARINE was personally served with Summons, Complaint and
the Statement of Damages of Plaintiff by delivering the same to the Secretary of State.

On May 16, 2012, Plaintiff filed with the Court a Proof of Service showing service on
MARINE by way of the Secretary of State, as well as a Request for Entry of Default against
MARINE. Plaintiff also filed with the Court the Statement of Damages of Plaintiff.

The Register of Actions of the Clerk of Court shows that Default was entered by the
Clerk against MARINE on May 16, 2012.

This action has settled as to all non-defaulted defendants.

The action is currently set for hearing on an Order to Show Cause regarding dismissal

on June 6, 2013 before the Honorable Teri L. Jackson.
My
UfCSO eI A HW PWN

Plaintiff's Asbestos-related Injuries and Damages

Plaintiff was diagnosed with and suffers from Asbestosis and Pleural Disease caused by
his exposure to asbestos for which defendant is liable. As evidence of his personal injury,
plaintiff submits the report of plaintiff's medical expert, Herman R. Bruch, MD, attached to the
Declaration of Nancy T. Williams, filed concurrently herewith, as Exhibit “A”,

Plaintiff had a work history that included exposure to asbestos containing products.
Defendant caused said exposure. Plaintiffs work history was detailed in the Exhibit A attached
to the complaint. The exposure relevant to this application for default judgement is summarized
as follows:

Plaintiff's work history, attached in Exhibit A to the Complaint, shows exposure to
asbestos containing product caused by MARINE ENGINEERING AND SUPPLY COMPANY.
Plaintiff brought this action against MARINE ENGINEERING AND SUPPLY COMPANY
for negligence under asbestos product supplier and contractor liability causes of action.
Plaintiff was exposed to asbestos containing insulation products supplied by defendant
MARINE ENGINEERING AND SUPPLY COMPANY and/or installed and/or disturbed by
said defendant as a contractor. Such exposure contributed to cause plaintiff's asbestos-related
disease.

Damages Ceiling Set by Statement of Damages

Attached to the Williams Declaration, is a true and accurate photocopy of the Statement
of Damages served upon defendant prior to default. The stated amounts on the Statement of
Damages serve as the ceiling on damages amount this court may assess and is as follows:

Ceiling for Economic Damages: $ 2,900,000.00

Ceiling for Non-Economic Damages: $ 2,000,000.00
Proof of Economic Damages

Plaintiff's Statement of Damages was served upon defendant concurrently with service
of the operative complaint and summons. This Statement of Damages sets the ceiling for

recovery of economic and non-economic damages in this action. Plaintiff claims future medical

expenses for treatments, medical monitoring and future hospitalization. (See a copy of theSe wen RA UH BF wWN

Statement of Damages served upon defendant attached to Declaration of Nancy T. Williams as
Exhibit “B”).

In support of Plaintiff's request for economic damages Plaintiff provides a declaration of
Internal Medicine Specialist and Pulmonologist Frank Ganzhorn, MD. (See declaration of Dr.
Ganzhorn attached to Declaration of Nancy T. Williams as Exhibit “C”). Dr. Ganzhorn opines
that the average cost of medical monitoring for persons having been exposed to asbestos is
$7,500.00 per year, with a future estimated hospitalization cost of an additional $50,000.00.

Pursuant to CACI 3932 and Table A - Life Expectancy Table ~ Male (pages 1170 -
1171), the average life expectancy for Plaintiff CHARLES HUSBAND who is age 65, is 17.3
more years. The total medical monitoring of $7,500.00 per year multiplied by 17.3 more years
is $129,750.00, That amount, plus the cost of even one future hospitalization ($50,000), equals
$179,750.00.

The following is a summary of Plaintiff's Economic Damages and demand:

Economic Damages SOD Limit | Proof Attached Requested
Medical Expenses to Date $200,000.00 Not shown 0.00
Future Medical Expenses $200,000.00 $179,750.00 $179,750.00
Loss of Earning to Date 0.00 Not shown 0.00
Loss of Future Earnings $1,500,000.00 Not shown 0,00
Loss of Household Services $1,000,000.00 Not shown 0.00
Total $2,900,000.00 $179,750.00 $179,750.00

Proof of Non-economic Damages

In his declaration, Plaintiff, in accordance with CAC] 3905A, testifies to his pain,
mental suffering, loss of enjoyment of life, disfigurement, impairment, inconvenience, grief,
anxiety, humiliation, distress, and fear of cancer as a result of his asbestos related disease.
(See declaration of plaintiff CHARLES HUSBAND attached to Declaration of Nancy T.
Williams as Exhibit “D”).

In further support of plaintiff’s reasonable request for non-economic damages, plaintiff's

counsel, James P. Nevin, has provided a declaration detailing typical jury non-economicoD ew IW DH RF WY

12

damages verdicts for cases. (See declaration of James P. Nevin attached to Declaration of
Nancy T. Williams as Exhibit “E”).
LEGAL ARGUMENT

A. PLAINTIFF HAS FOLLOWED THE PROCEDURAL STEPS AND
HAS DEMONSTRATED ENTITLEMENT TO DEFAULT JUDGMENT

After entry of default, upon written application, plaintiffs may apply to the Court for the
relief demanded in the complaint. (Cal. Code Civ. Proc. § 585(b).) Plaintiffs may request a
prove-up hearing wherein plaintiffs are not required to prove Jiability because through the entry
of default, defendant admits all the material allegations in the complaint. (Sporn v. Home Depot
USA, Inc. (2005) 126 Cal.App.4th 1294, 1303; Johnson v. Stranhiser (1999) 72 Cal.App.4th

357, 361; Bristol Convalescent Hospital v. Stone (1968) 258 Cal.App.2d 848, 859.) “The

default of the defendant in an ordinary action of this character admits, so far as such defaulting
defendant is concerned, the absolute verity of all the allegations of the complaint giving rise to
liability.” (Bristol, 259 Cal.App.2d at 859.) Cal. Code Civ. Proc. § 585(b) further provides that
“the court shall hear the evidence offered by the plaintiff, and shall render judgment in the
plaintiffs favor for that relief, not exceeding the amount stated in the complaint, in the
statement required by Section 425.11, or in the statement provided for by Section 425.115, as
appears by the evidence to be just.” (Cal. Code Civ. Proc. § 585(b).} Thus, at a prove-up
hearing, the plaintiffs need only introduce evidence establishing a prima facie case for damages

to support an entry of default judgement. (Johnson, 72 Cal.App.4th at 362-363.) “The court, in

its discretion, may permit the use of affidavits in lieu of personal testimony, as to all or any part
of the evidence or proof required or permitted to be offered, received, or heard.” (40A Cal. Jur.
3d Judgments § 40.)

Substantively, ‘[t]he judgment by default is said to ‘confess* the material facts alleged
by the plaintiff, i.e., the defendant’s failure to answer has the same effect as an express
admission of the matters plead in the complaint. The judgment is, in consequence, res judicata

on the issue of the right to the relief awarded.” (6 Witkin, Cal. Procedure (4" ed. 1997)
Proceedings Without Trial §153, p. 570.)
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FO}
DEFAULT JUDGMENT AGAINST DEFENDANT MARINE ENGINEER!CU em ND BR WD

i]

Defendant MARINE ENGINEERING AND SUPPLY COMPANY was served with the
summons and complaint stating the facts upon which it was required to act. MARINE
ENGINEERING AND SUPPLY COMPANY has failed to appear. “[I]t is a fundamental

concept of due process that a judgment against a defendant cannot be entered unless he was

given proper notice and an opportunity to defend.” Schwab v. Southern California Gas Co.
(Cal.App.4th Dist. 2004) 114 Cal. App. 4th 1308, 132.) However, a defendant who fails to
appear has “deliberately waived the right to their day in court.” (Horton v. Horton (1941) 18
Cal.2d 579, 585.) Therefore, “[a] default judgment is an estoppel as to all issues necessarily

litigated therein.” (Id. citing Hutchings v. Ebeler & Trout 46 Cal. 557; Strong v. Shatto (1927)

201 Cal. 555; 3 Freeman on Judgments, 5" ed., p. 2690, § 1296.)

“[i]t is sufficient to allege that an act was negligently done by defendant and that it
caused damage to plaintiff.” (Smith v Beauchamp (1945) 71 Cal.App.2d 250, 254.) “[I]t is held
in this state, and in nearly all of the United States, that it is sufficient to allege the negligence in
general terms.” (Id.} “Because the default confesses those properly pleaded facts, a plaintiff has
no responsibility to provide the court with sufficient evidence to prove them-they are treated as
true for the purposes of obtaining a default judgment.” (Kim_v. Westmoore Partners. Inc..
(Cal.App.4th 2011) 201 Cal.App.4th 267, 281.) In a default prove up hearing, the role of the
Court is simply to ensure that the damages assessment is not “so disproportionate to the
evidence as to suggest that the verdict was the result of passion, prejudice or corruption or
where the award is so out of proportion to the evidence that it shocks the conscience.” (Uvav.

Evans (1978) 83 Cal.App.3d 356, 362, italics added.) “It is the court's responsibility to act as a

‘gatekeeper,’ ensuring that only the appropriate claims get through and that the judgment is not
inconsistent with or in excess of the complaint." (Heidary v. Yadollahi (2002) 99 Cal 4th 857,
868; Easuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 691, not to weigh or rebut the
evidence.) By sufficient evidence, plaintiff has shown MARINE ENGINEERING AND
SUPPLY COMPANY is liable and therefore plaintiff should be granted a default judgment.

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B. FAULT ALLOCATION UNDER PROPOSITION 51 IS NOT REQUIRED
BEFORE A COURT MAY GRANT DEFAULT JUDGMENT AND FAILURE
TO PLEAD AFFIRMATIVE DEFENSES PRECLUDES THEIR USE

“In an action against several defendants, the court may, in its discretion, render
judgment against one or more of them, leaving the action to proceed against the others,
whenever a several judgment is proper.” (Mirabile v. Smith (1953) 119 Cal. App.2d 685, 688
citing Trans-Pacific Trading Co. v. Patsy Frock & Romper Co. (1922) 189 Cal. 509.) In such
cases, if the answering defendant raises defenses not involving the defaulting defendant, there is
no reason to delay entry of a default judgment. (Mirabile, 119 Cal.App.2d at 688; Cal. Prac.
Guide Civ. Pro. Before Trial Ch. 5-E.)

Non-economic damages liability can be apportioned according to fault under
Proposition 5] only to the extent defendant (1) pleads (by affirmative defense) and proves the
comparative fault of others, and (ii) proposes a special verdict form requesting the allocation.
(Cal. Prac. Guide Pers. Inj. Ch. 3-A.)

Proposition 51 allocation of fault is not applicable in a default prove-up. This is because
“t]he entry of default terminates a defendant’s rights to take any further affirmative steps in the
litigation.” (Devlin v. Kearny Mesa AMC/Jeep/Renault. Inc. (1984) 155 Cal. App.3d 381, 385.)

A non-answering defendant admits all material allegations in a default prove up. (See, e.g,

Sporn, 126 Cal.App.4th at 1303; Johnson, 72 Cal. App. 4th at 361; Bristol, 258 Cal.App.2d at

859.) Proposition 51 is an affirmative defense that allows a defendant to allocate fault. (Cal.
Code. Civ. Proc. 1431.2.) As a general rule, affirmative defenses must be set forth in the
defendant’s answer. (1 Cal. Affirmative Def. § 1:5 (2013 ed.) “‘*[TJhe defendant has the initial
burden to show that undisputed facts support each element of the affirmative defense.’”

(Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468 citing Anderson v.

Metalclad Insulation Corp. (1999) 72 Cal_App.4th 284, 289-290.) Failure to plead an
affirmative defense specially will preclude evidence of the defense at trial. (Carranza v. Noroian
(1966) 240 Cal. App.2d 481, 485-486.) Defendant MARINE ENGINEERING AND SUPPLY
COMPANY has neither appeared nor answered in this matter.

Se a a OT ETTTES TM SUPPORTO CATO o
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Similar to California, other states consider failure to plead an affirmative defense as a
waiver. “[Al]n affirmative defense must be expressly asserted...” (Grzesick v. Cepela (Mich. Ct.
App. 1999) 237 Mich.App. 554, 562-63.) “*A defendant’s failure to timely and reasonably raise
and pursue the enforcement of any affirmative defense or other affirmative matter or right
which would serve to terminate or stay the litigation, coupled with active participation in the
litigation process, will ordinarily serve as a waiver.’”

(Miss. 2010) 32 So.3d 417, 420 citing Miss. Credit Center, Inc, v. Horton (Miss. 2006) 926

So.2d 167.) States also hold discussion of affirmative defenses insufficient absent an expressed

(Jones v. Fluor Daniel Services Corp.

pleading. “Therefore, although the Bell’s brief includes lengthy discussion of mitigation of
damages, without having pled the affirmative defense, the defense is waived.” Riddell v. Bell
(Mo. Ct. App. 2008) 262 $.W.3d 301, 305.)

Defendant has not plead Proposition 51, which is an affirmative defense. California and
other various states require affirmative defenses to be asserted in an answer. Failure to do so
constitutes a waiver. Defendant is therefore precluded from using Proposition 51 as an
affirmative defense in this matter.

Moreover, when Cal. Code Civ. Proc. 585(b) states that the court is required to render
default judgment for such sum . . . as appears to be “just,” this does not in anyway contemplate
that the court shall, or even may, reduce the just sum in consideration of Proposition 51.

Regarding provable and tangible amounts, “multiple tortfeasors still bear joint and several

liability after Proposition 51.” (Aetna Health Plans of Cal. v. Yucaipa-Calimesa Joint Unified
Sch. Dist, (1999), 72 Cal.App.4th 1175, 1190.)

Proposition 51's applicability to this case is undermined by ambiguities. Proposition 51
has numerous, unresolved issues regarding its actual effect in civil litigation. (Cal. Civ, Prac.
Torts § 4:5.) The most relevant issues in pertinent part are:

(1) is the negligence of unnamed parties considered in allocating
liability for noneconomic damages? If it is not, may a plaintiff

circumvent Civ. Code, § 1431.2 by choosing to sue only one
solvent defendant?

(2) with regard to defendants who have previously settled, what
methods may be used to determine the amount of t

he settlementa Oo eID A Rw ON

that is for economic damages and the amount that is for
noneconomic damages?

(3) whether Civ. Code, § 1431.2 reference to actions for ersonal
injury, property damage, or wrongful death, will be broadly or
narrowly construed.
(6) whether and to what extent items such as future medical
expenses and loss of future earnings qualify as objectively
verifiable medical expenses or loss of earnings and hence as
economic rather than noneconomic damages.
(7) whether the loss of prospective financial support and benefits
resulting from wrongful death is an objectively verifiable
economic loss or a noneconomic loss.

(Cal. Civ. Prac. Torts § 4:5.)

Proposition 51 restricts general, non-economic damages as several only. (Cal. Civ. Code
§ 1431.2.) However, the code is ambiguous as to what specifically constitutes economic versus
non-economic damages. While Proposition 51 lists several non-economic damages, the list is
neither limited nor exhaustive. (Cal, Civ. Code § 1431.2(b)(2).) Therefore, an exact allocation
standard for non-economic damages cannot exist. Cal. Civ. Code § 1431.2 recognizes this
reality. Even in “good faith” piecemeal settlements subject to Proposition 51, plaintiffs must
only assert the ballpark share of a settling defendant’s non-economic damages. (Cal. Prac.
Guide Civ. Pro. Before Trial Ch. 12(ID-E.) The only qualifier to this “ball park” range is that it
is reasonable. (Id.)

A jury assigns fault on the basis of exactly that — fault. California Civil Code § 1431.2
states that the liability applies “based upon principles of comparative fault.” If a jury were to
begin to consider how much it thought was fair for a defendant to pay in economic damages, it
would be assigning liability on the basis of its assessment of who can bear the risk, not who is at
fault. The jury’s job is not to consider how much a defendant should pay; it is to consider how
much the plaintiff was injured and what percentage of that injury is attributable to the
defendant. Similarly, in a default prove up, since the material allegations of the complaint are
deemed admitted and the only issue is the amount of plaintiffs’ damages, it is this Court’s role

to assess how much the plaintiffs were damaged, and not to assess what would be fair for the

defaulted defendant to pay. “The leading object of such actions is to obtain reasonable and just

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compensation for the injury sustained, comprehending both the present and the future.” (Music
v. Southern Pac. Co. (App. 1949) 91 Cal.App.2d 93, 100; Cal. Civ. Code § 3281.) Allowing a
fairness assessment would undermine the concepts of just, reasonable and the interests of
justice.

In addition to being legally prohibited, it is not factually possible. For example, how
could the Court allocate the percentage of fault for non-economic damages when there is no
evidence submitted (because none is required) to support various faults of any or all relevant
entities? How could the Court assess credits against economic damages without a Greathouse
ratio established by a jury between economic and non-economic damages? Moreover, as
mentioned above, MARINE ENGINEERING AND SUPPLY COMPANY, would, in fact, have
later remedies such as indemnity and contribution with which to avail itself to reduce its total
un-reimbursed payments to the plaintiffs.

“Thus, where one defendant defaults his default may be entered and a judgment
rendered against him, leaving the action to proceed as to the other defendants until the injured
party has received satisfaction, even though this results in different judgments as to several
defendants.” (Winzler and Kelly v. Superior Court for Humboldt County (App. 1 Dist. 1975) 48

Cal.App.3d 385, 393.) The reasoning for this rule is to allow an injured party to recover against

non-answering or defaulting defendants immediately while allowing other defendants the
opportunity to plead affirmative defenses. After a default, no jury is required as there is no
issue to try. (Smith v. Billett (1860) 15 Cal. 23, 26.) “The factual determination of a referee is
not binding upon the court. The jury's assessment of damages in the event of default must be
construed as no more binding.” (Cyrus v. Haveson (App. 2 Dist. 1976) 65 Cal. App.3d 306, 318;
4 Witkin, Cal. Procedure (2d ed.) Proceedings Without Trial, § 36.) The aim of serving a
statement of damages on defendant before default is to ensure defendant’s whom decline to
contest actions do not subject themselves to open-ended liability. (Schwab, 114 Cal.App.4th at
1320.)

Defendant MARINE ENGINEERING AND SUPPLY COMPANY has not answered or

appeared in this matter. Therefore, the defendant has waived all affirmative defenses, including

Hee OSE SelB Del es MARENG ONLY 19
ORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION RK, F,
BERS JUDGMENT AGAINST DEFENDANT MARINE ENGINEERING AND SUPPLY COMPANYSo OD wm NDR Hh BF WN

Proposition 51. Judicial authority and the non-binding status of jury damage determination
allows this court to order a default judgment and assign damages accordingly.
Cc. IT IS CLEAR THAT DETERMINATIONS AS TO FAULT REGARDING

OTHER POSSIBLE TORTFEASORS ARE IRRELEVANT TO THE
GRANTING OF DEFAULT JUDGMENT HERE

Mirabile, 119 Cal.App.2d 685, as here, where defendants have separate defenses, not
involving defaulting defendants, showed that default could be entered without fault
determination against other tortfeasors. Additionally, courts may enter a default judgment
against one tortfeasor without finding fault against other tortfeasors by separation. “It is a
general rule that in a civil action against two or more defendants the trial court has discretion to
order separate trials as between the plaintiff and separate defendants.” (Fisher v. Superior Court
of Los Angeles County (Cal. App. 2d Dist. 1958) 157 Cal.App.2d 126, 130.) “Thus, where one
defendant defaults his default may be entered and a judgment rendered against him, leaving the
action to proceed as to the other defendants until the injured party has received satisfaction,
even though this results in different judgments as to several defendants” Winzler & Kelly v.
Superior Court (1975) 48 Cal.App.3d 385, 393.) Once default has been entered, the defendant
“cuts off its right to appear in the action. It is ‘out of court.’” (Devlin v. Kearny Mesa
AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385-386.)

In Mirabile, 119 Cal.App.2d at 688, the Court of Appeal observed that “[t]here are

certain cases where default judgments were taken against defaulting defendants who were
claimed to be jointly and severally liable with the answering defendants. There, however, they
set up independent defenses not involving the defaulting defendants. “The terms of this section
do not limit the rule to actions in which the defendants have appeared and answered, but include
as well those in which some of the defendants have made default...” (Bailey Loan Co. v. Hall
(Cal. 1895) 110 Cal. 490, 492 (discussing Cal. Code Civ. Proc. § 578.) To the same effect is
(Cole v. Roebling Constr. Co. (Cal. 1909) 156 Cal. 443, 447), as applied to joint tortfeasors.

‘The instant action is more akin to the illustration in Mirabile, in that Plaintiffs’ case is

against multiple defendants with differing defenses and is unlike the scenario found in

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Kooper v. King, (1961) 195 Cal. App. 2d 621, 628-629, where the action was against co-partner
defendants with the same defense to the same facts.

The court in Cuevas v. Truline Corp, (2004) 118 Cal.App.4th 56, in reviewing the one
final judgment rule for appellate proceedings found that such a rule does not “prohibit separate
or partial judgments against some, but not all, defendants.” (Id. at 60.) “Such incomplete or
partial dispositions are familiar in our jurisprudence, For example, Cal. Civ. Code § 579 allows
entry of judgment against one defendant while continuing the action against another defendant.

(See Vandenberg y. Superior Court (1999) 21 Cal. 4th 815, 824; T&R Painting Construction.
Inc. v.. St. Paul Fire & Marine Ins, Co. (1994) 23 Cal_-App.4th 738, 742-43.) The law also

permits separate judgments against defaulting and non-defaulting defendants. In addition, it
allows separate judgments by summary judgment. And Proposition 51 permits separate
judgments for non-economic damages. (Cal. Civ. Code, § 1431.2 .) What the one final
judgment rule prohibits is appealing from partial dispositions while other unresolved matters
remain pending against other parties.

The court has discretion to allow default against one tortfeasor, where other tortfeasors
have separate defenses not involving default, without a fault determination. Therefore, default
should be granted against defendant MARINE ENGINEERING AND SUPPLY COMPANY.

D. LIABILITY FOR “JUST” COMPENSATION UNDER 38500) IS THAT

WHICH MAKES THE PLAINTIFF WHOLE AND IS NOT CONTINGENT
UPON TORTFEASOR’S ABILITY TO PAY

“[A] negligent tortfeasor is generally liable for all damage of which his negligence is a
proximate cause.” (Henry v. Superior Court, (2008) 160 Cal.App.4th 440, 448.) Every person
who suffers detriment from the unlawful act or omission of another, may recover from the
person in fault a compensation therefor in money, which is called damages. (Cal. Civ. Code §
3281.)

“There is no legal method or yardstick by which the precise value of human pain and
suffering may be determined, nor is there any formula by which personal disfigurement may be
appraised and a certain sum fixed upon as the true resultant damage.” Williams Paving Co. v.
Kreidl (Va. 1958) 200 Va. 196, 204.) “The law does not assume that a particular injury calls for

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MEMORANDUM 01 TS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR
DEMOS SUBOMENTA AINST DEFENDAN'T MARINE EN RING SAD SUPPLY COMPA ayCOD mR DH FF WN

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a definite amount of compensation, for a just compensation may vary widely in different cases,
even where the physical injury is the same, especially where the injury is permanent or where
physical or mental pain and suffering are involved.” (Id., emphasis added.) “Hence the amounts
of respective verdicts for somewhat like physical injuries are by no means controlling or
determinative of whether a verdict under consideration is excessive or not, or inadequate or
not.” (1d.)

At common law, when measuring damages, the general underlying principle “is that
whoever unlawfully injures another shall make him whole.” (Bullerdick v. Pritchard (Colo.
1932) 8 P.2d 705, 706; accord Kirk v. Denver Publishing Co. (Colo. 1991) 818 P.2d 262, 265.)
This principle reflects the “venerable American tradition of just compensation for injuries and
damages.” (See H.B. 97-1239 § 1 (1997), reprinted in Historical and Statutory Notes, COLO.
REV. STAT. ANN. § 13-21-102.5 (Elec. Pocket Pt. Update West 2000).)

Under Cal. Code Civ. Proc. § $85(b), the appropriate damages award is that which is
necessary to adequately compensate an injured party. Specifically, the compensation must be
just. (Cal. Code Civ. Proc. § 585(b), emphasis added.) The statute does not provide an exact
definition or standard for what constitutes “just” compensation. This is due to the law not
presuming a particular injury calls for a definite amount of compensation. (Williams, 200 Va. at
204.) However, courts have interpreted “just” compensation as compensation for loss of use
and that which will “make the plaintiff whole as of the date of the injury.” (Howard v.
American Nat. Fire Ins. Co. (2010) 187 Cal.App.4th 498, 535; Cal. Prac. Guide Civ. Trials &
Ev. Ch. 17-F.)

There is no requirement that a plaintiff prove with certainty the extent of the harm he

has suffered as a result of the defendant’s conduct. (Clement v. State of California (1985) 40

Cal.3d 202, 219.) Although ‘[iJt is desirable...that there be definiteness of proof of the amount
of damage as far as is reasonably possible[,] [i]t is even more desirable...that an injured person

not be deprived of substantial compensation merely because he cannot prove with complete

certainty the extent of harm he has suffered.’” (Garcia v. Duro Dyne Corp. (2007) 156
Cal.App.4th 92, 98-99; Ibid., quoting Res.2d Torts, § 912, com. a, p. 479.)oO wm IN DH A BW Dm

Compensatory damages are those sufficient in amount to indemnify the injured person
for the loss suffered. (Black’s Law Dictionary 174 (9" ed, 2009.) As a general rule, evidence of
a defendant’s pecuniary resources is irrelevant and inadmissible in cases where only
compensatory damages are recoverable. (Am. Jur. 2d, Damages § 750.) “Obviously, the
questions of liability and the amount of damages, if any, in the ordinary personal injury case are
to be determined without regard to the defendant’s ability to pay any judgment rendered against
him.” (Hoffman v. Brandt (Cal. 1966) 65 Cal. 2d $49, $54.) “Evidence that the defendant is
poor or uninsured generally has no probative value on these issues and is therefore irrelevant in
a negligence action.” (Id. at 553-54). “[A] civil damage award is rendered without regard to the
defendant's ability to pay.” (People v. Hodgkin (1987) 194 Cal.App.3d 795, 805.) This is why
personal injury damages “have no ceiling on general damages.” (Fein v. Permanente Medical
Group (1985) 38 Cal.3d 137, 160.)

Upon showing of sufficient evidence, the court “shall render judgment in the plaintiffs
favor for that relief...as appears by the evidence to be just.” (Cal. Code Civ. Proc. § 585(b).)
Ultimate damage allocation among multiple tortfeasors remains solely under the court’s
discretion. (2-3900 CACI 3933.)

To the extent this Court believes that “just” damages has anything to do with the
defendant’s ability to pay, that ceiling has already been set by the statement of damages. The
entire purpose of a statement of damages is to put the defendant on notice of the maximum that
they may be required to pay if they fail to answer. Therefore, as long as the damages are in
accord with the evidence provided, and are at or under the ceiling in the statement of damages,
then they are just.

Sufficient evidence of plaintiff's injury and damages has been presented against defendant
MARINE ENGINEERING AND SUPPLY COMPANY, whom have not appeared in this case.
The final decision regarding a “just” damage allocation rests with the court. Moreover, damage
awards are rendered without regard to defendant's ability to pay. Due to sufficiency of
evidence, case law and authority, this court has discretion to apportion damages and enter a

default judgment against the defendant.

ee ae Dae om aR OL reeveTT TERN SUPPORT OF APPLICATION FOR ENTRY
M OF HINTS A. JES IN Pe Pi A
MEM OAYOBS MEN PASAINS FEET ENDANT MARINE ENGINGERING AND SUPPLY COMPASoO mM I DAA BF BW NY

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CONCLUSION.

The operative summons, complaint and Statement of Damages were served on
defendant and defendant has failed to defend or otherwise appear in this action. Plaintiff has
filed proof of service of summons on defendant as well as a request for entry of default and
Statement of Damages. In accordance with the economic and non-economic damages set forth
above, as shown in the Declaration of Plaintiff and in the other Exhibits attached to the
Declaration of Nancy T. Williams, and as reduced by the Statement of Damages ceiling where
applicable, plaintiff requests the Court enter default judgment against defendant in amounts as
follows:

Economic Damages: $ 179,750.00
Non-Economic Damages: $ 2,000,000.00 '

WHEREFORE, Plaintiff is entitled to a default judgment against defendant MARINE
ENGINEERING AND SUPPLY COMPANY and respectfully seeks default judgment against
defendant MARINE ENGINEERING AND SUPPLY COMPANY in the total amount of
$2,179,750.00.

Dated: LOL “/t 3 Respectfully submitted,

BRAYTON*PURCELL LLP

By:

fancy T. Williams
Attorneys for Plaintiff

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