On March 02, 2009 a Motion-Secondary was filed involving a dispute between Husband, Charles, and Albay Construction Company, All Asbestos Defendants See Scanned Documents, American Conference Of Governmental Industrial, Asbestos Defendants, Asbestos Manufacturing Company, Auto Friction Corporation, Auto Specialties Manufacturing Company, Bell Asbestos Mines Ltd., Bigge Crane And Rigging Co., Borgwarner Morse Tec, Inc., Brassbestos Brake Lining Company, Bridgestone Firestone North American Tire, Llc, Bucyrus International Inc, Carone Brothers, Inc., Cbs Corporation,, Certainteed Corporation, Chicago Bridge & Iron Company,, Cleaver-Brooks, Inc., Conocophillips Company, Csk Auto, Inc., Daimlerchrysler Corporation, Daimlerchrysler Corporation (And Not The Claims, Dillingham Construction, N.A., Inc., Does 1-8500, Emsco Asbestos Company, Fibre & Metal Products Company, Forcee Manufacturing Corporation, Garlock Sealing Technologies Llc, Gatke Corporation, Georgia-Pacific Corporation, Georgia-Pacific Llc,, Hamilton Materials, Inc, Hanson Permanente Cement, Inc. Fka Kaiser Cement, H. Krasne Manufacturing Company, Honeywell International Inc.,, Ingersoll-Rand Company, J.T. Thorpe & Son, Inc., Kaiser Gypsum Company, Inc., Lasco Brake Products, Lear Siegler Diversified Holdings Corp., L.J. Miley Company, Maremont Corporation, Marine Engineering And Supply Company, Metropolitan Life Insurance Company, Molded Industrial Friction Corporation, Morton International, Inc., National Transport Supply, Inc., Owens-Illinois, Inc., Pacific Gas And Electric Company, Parker Hannifin Corporation, Plant Insulation Company, Pneumo Abex Llc, Quintec Industries, Inc., Riteset Manufacturing Company, Rossendale-Ruboil Company, Santa Fe Braun, Inc. As Successor-In-Interest To, Shell Oil Company, Silver Line Products, Inc., Southern Friction Materials Company, Standard Motor Products, Inc., Standco, Inc., Stuart-Western, Inc., Temporary Plant Cleaners, Inc., The Budd Company, Thomas Dee Engineering Company, Underwriters Laboratories, Inc., Union Carbide Corporation, Universal Friction Materials Company, U.S. Spring & Bumper Company, Wheeling Brake Block Manufacturing Company, York International Corporation, for civil in the District Court of San Francisco County.
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BRAYTON*PURCELL LLP-—— ATTORNEYS AT LAW 222 RUSH LANDING ROAD POBOX 6169 NOVATO, CALIFORNIA 94948-6169 (415) 898-1555 oO we ND HW FF YN o DAVID R. DONADIO, ESQ., S.B. #154436 NANCY T. WILLIAMS, ESQ., S.B. #201095 ELECTRONICALLY BRAYTON*PURCELL LLP Attorneys at Law FILED 222 Rush Landing Road Superior Court of California, P.O. Box 6169 — County of San Francisco Novato, California 94948-6169 MAR 21 2011 (415) 898-1555 Tentative Ruling Contest Email: contestasbestosTR@braytonlaw.com _Clerk of the Court BY: JUANITA D. MURPHY Attomeys for Plaintiff Deputy Cle SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO ASBESTOS No. CGC-09-275098 CHARLES HUSBAND, ) MEMORANDUM OF POINTS AND ) Plaintiff, AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR ORDER GRANTING LEAVE TO FILE AMENDMENT TO THE COMPLAINT TO SUBSTITUTE DEFENDANT’S TRUE NAME FOR DOES 15 AND 1008 IC.C.P. § 473] Date: March 22, 2011 Time: 11:00 a.m. Dept.: 220, Hon. Harold E. Kahn Trial Date: None Set Filing Date: March 2, 2009 vs. ASBESTOS DEFENDANTS (B*P) I. STATEMENT OF FACTS Plaintiff, CHARLES HUSBAND, filed this asbestos personal injury action on March 2, 2009, claiming injuries and damages as a result of his asbestos-related lung disease. After furthe discovery and investigation, it was revealed there are additional entities who may share liability for plaintiff CHARLES HUSBAND’s asbestos-related disease. Therefore, the one new defendant who manufactured, distributed, supplied and/or installed asbestos-containing products Mf K Mnjured\ 0581Sipd\pa-xpk-mta-cnp-doe-158 1008 wpd 1 NTW MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR ORDER GRANTING LEAVE TO FILE AMENDMENT TO THE COMPLAINT TO SUBSTITUTE DEFENDANT’S TRUE NAME FOR DOES 15 AND 1008—- So my De Bw! NHN Oo oR AA RF Bw Ny oo 21 to plaintiff, CHARLES HUSBAND’s employers/jobsites, has been added to the Amendment to summary complaint (MARINE ENGINEERING AND SUPPLY COMPANY. Allowing the filing of the Amendment to the Complaint is in the furtherance of justice so that plaintiff may properly present his case. Since there is no trial date assigned in this case, new defendants will have ample time to complete pre-trial discovery and other trial preparation. Th GAL DISCUSSION Code of Civil Procedure section 473, provides in pertinent part: The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding... The court may likewise in its discretion, after notice to the adverse party, allow on any terms as may be just, an amendment to any pleading or proceeding in other particulars... California courts have uniformly permitted parties great liberality in amending pleadings. “[I]t can very rarely happen that a court will be justified in refusing a patty leave to amend his pleading so that he may properly present his case." Seamans v. Standard Hotel Corporations (1947) 78 Cal. App.2d 818, 826. Underscoring this policy of liberality in amending pleadings is the fact that mandamus is available for review of the trial court's denial of leave to amend a pleading, but not for permitting such leave, and that appellate courts commonly reverse trial court's denial of leave to amend. 8 Witkin California Procedure (3d Ed. 1985) "Pleading," §§ 1123, 1124, pp. 540-541. Moreover, the statute of limitations under C.C.P. § 340.2 has not run for the adding of new parties or the filing of new claims against any party. It is appropriate to grant the requested relief via ex parte application, (o) Boe® is routinely granted without notice of hearing of any Kind, The application for leave to amend is simply presented to a judge or commissioner for signature. L Brown & R. Weil, California Practice Guide: Civil Procédure Before ‘Trial (The Rutter Group 2009), Section 6:614. dt Moivre 1058 Siplaipdearxpt-otsrempdae 1541008. wed 2 NTW MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR ORDER GRANTING LEAVE TO FILE AMENDMENT TO THE COMPLAINT TO SUBSTITUTE DEFENDANT'S TRUE NAME FOR DOES 15 AND 1008Cm NY DH BF BW PN NR RR RR NR Rm oN A A RB YO SB Se SS Bw IH NH FS WH BH S Plaintiff is not presenting any new allegations to the complaint, but plaintiff is merely substituting a previously unknown defendant for a “Doe.” Thus, the amendment should be allowed in the furtherance of justice so that plaintiff may properly present his case. (See Seamans, 78 Cal.App.2d at 826.) : CONCLUSION / In view of the foregoing, plaintiff respectfully requests the Ex Parte Application for Order Granting Leave to File an Amendment to Substitute Defendant’s true name for “Doe” be granted, Respectfully submitted, : Dated: WL “it BRAYTON®PURCELL LLP oe By - EE T, Williams Attorneys for Plaintiff . KAinurea\wo89 Siplatpeeaonpremea-cinp-dae-183:1008 wpe 3 NOW MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR ORDER GRANTING LEAVE TO FILE AMENDMENT TO THE COMPLAINT TO SUBSTITUTE DEFENDANT'S TRUE NAME FOR DOES 15 AND 1008