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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i BRAYTON¢ PURCELL LLP ATTORNEYS AT LAW 722 RUSH LANDING ROAD ORNIA 94948-6169 BOX 6169 oS 2 < = & z D2 0 OB aR HW B&B BN DAVID R. DONADIO, ESQ., S.B. #154436 NANCY T. WILLIAMS, ESQ., S.B. #201095 ELECTRONICALLY BRAYTON @ PURCELL LLP FILED tiorneys at Law 222 Rush Landing Road Superior Court of California, P.O. Box 6169 County of San Francisco Novato, California 94948-6169 SEP 14 2010 (415) 898-1555 ° “4 . Clerk of the Court Tentative Ruling Contest Email: contestasbestosTR@bravtonlaw.coma/ pavMoNnD K. WONG Deputy Clerk Attorneys 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 EX PARTE APPLICATION FOR ORDER GRANTING LEAVE TO FILE AMENDMENT TO THE COMPLAINT TO SUBSTITUTE DEFENDANTS' TRUE NAMES FOR DOES 3-13 AND 1001-1007 [C.C.P. § 473] Date: September 14, 2010 > Time: 11:00 a.m. Dept.: 220, Hon. Harold E. Kahn Trial Date: May 16, 2011 Filing Date: March 2, 2009 vs. ASBESTOS DEFENDANTS (BSP) ee ST. T 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 further discovery and investigation, it was revealed there are additional entities who may share liability for plaintiff CHARLES HUSBAND’s asbestos-related disease. Therefore, the eleven new defendants who manufactured, distributed, supplied and/or installed asbestos-containing products to plaintiff, CHARLES HUSBAND’s employers/jobsites, or owned and/or controlled A Alnjureg 88 Sipldy Sisneptamsacoenpine-3013-8100)-1007.wpd 1 < NTW MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR ORDER GRANTING LEAVE TO PILE AMENDMENT TO THE COMPLAINT TO SUBSTITUTE DEFENDANTS’ TRUE NAMES FOR DOES 3-13 AND 1001-1007own DA HM BR BN 10 the premises where plaintiff was employed, have been added to the Amendment to summary complaint (ALBAY CONSTRUCTION COMPANY: BIGGE CRANE AND RIGGING CO.; CARONE BROTHERS, INC.; SANTA FE BRAUN, INC, AS SUCCESSOR-IN-INTEREST TO C.F. BRAUN, INC.; CHICAGO BRIDGE & IRON COMPANY; DILLINGHAM CONSTRUCTION, N.A., INC., THOMAS DEE ENGINEERING COMPANY; INGERSOLL- RAND COMPANY; CLEAVER-BROOKS, INC.; CERTAINTEED CORPORATION; YORK INTERNATIONAL CORPORATION). Allowing the filing of the Amendment to the Complaint is in the furtherance of justice so that plaintiff may properly present his case.: Since the trial date in this matter isn’t until May | 16, 2011, new defendants will have ample time to complete pre-trial discovery and other trial preparation. ‘ ~ Th. LEGAL 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. "[IJt can very rarely happen that a court will be justified in refusing a party leave to amend his pleading so that be 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. lt is appropriate to grant the requested relief via ex parte application. K Mejores 058i Sipktpdo-xpi-mta-ernp-doe-3-1381001-1007.wpd. 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 DEFENDANTS' TRUE NAMES FOR DOES 3-13 AND 1001-1007SG Oe 2a WwW Rw (b) In most courts, leave to amend to substitute a defendant’s true name for “Doe” is routinely granted without notice or hearing of any kind. The application for leave to amend is simply presented to a judge or commissioner for signature. I. Brown & R. Weil, California Practice Guide: Civil Procedure Before Trial (The Rutter Group 2009), Section 6:614. 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 Defendants’ true name for “Doe” be granted. Respectfully submitted, Dated: Little BRAYTON*PURCELL LLP ancy T. Williams Attorneys for Plaintiff KSlnjrred 088 Spidipde-xptemuaccmpdoe 5-124 1001-1007.od 3 NTW MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR ORDER GRANTING LEAVE TO FILE AMENDMENT TO THE COMPLAINT TO SUBSTITUTE DEFENDANTS’ TRUE NAMES FOR DOES 3-13 AND 1001-1007