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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Oo Oe NY DA HW BR WN NR NN NR RR Re ke NY BH WH BBN = DD wea DH BF WH HF 28 Walsworth, Franklin, Bevins & ‘MeCall, LLP ATTORNEYS AT La? INGRID K. CAMPAGNE, State Bar No. 162164 ichampagne@wfbm.com IAN P. DILLON, State Bar No. 203612 ELECTRONICALLY idillon@wfbm.com DAVID J. KESTENBAUM, State Bar No. 253749 FILED dkestenbaum@wfbm.com Superior Court of California, WALSWORTH, FRANKLIN, BEVINS & McCALL, LLP County of San Francisco 601 Montgomery Street, Ninth Floor AUG 27 2010 San Francisco, California 94111-2612 Clerk of the Court Telephone: (415) 781-7072 BY: VANESSA WU Facsimile: (415) 391-6258 Deputy Clerk Attorneys for Defendants HAMILTON MATERIALS, INC. SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO CHARLES HUSBAND, Case No. CGC-09-275098 Plaintiff, Hon: Harold E. Kahn Dept: 220 vs. Date: August 31, 2010 Time: 11:00 a.m. ASBESTOS DEFENDANTS, et al., MEMORANDUM OF POINTS AND Defendants. AUTHORITIES IN SUPPORT OF DEFENDANT HAMILTON MATERIALS, INC.'S EX PARTE APPLICATION FOR AN ORDER SHORTENING TIME TO HEAR A MOTION TO VACATE THE TRIAL DATE Complaint Filed: March 2, 2009 Trial Date: October 4, 2010 MEMORANDUM OF POINTS AND AUTHORITIES I. STATEMENT OF RELEVANT FACTS Plaintiff Charles Husband (“plaintiff”) filed this asbestos related personal injury lawsuit on March 2, 2009. On July 22, 2010, this Court entered an order allowing plaintiff to amend his complaint to include Hamilton Materials, Inc. (“Hamilton”) as doe defendant #1. Hamilton was served with a Summons and Complaint in this matter on August 12, 2010. This matter is set for -1- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT HAMILTON MATERIALS. INC.'S EX PARTE APPLICATION FOR AN ORDER SHORTENING TIME TO HEAR A 1012174,1 1155-5.2770C0 Oo DV DH HA BBW YN Nw NY NY NHN NY HN Nw ee i NY DA A FF WKH KF SD 6 eC I DH WH BF BW NH KY OS 28 ‘Walsworth, Frankgin, Bevins & MeCsll, LLP ATTORNEYS AT LA trial on October 4, 2010. Without an Order Shortening Time to bring a motion to continue the trial date, Hamilton will be extremely prejudiced in this matter as Hamilton was served a little more than seven weeks before the trial date set in this current matter. Because trial is set to commence five weeks after the date for the hearing on Hamilton’s ex parte application, Hamilton will be prejudiced should it not be able to have its motion to vacate the trial date heard on shortened notice. Therefore, Hamilton believes good cause exists for the Court to grant this Ex Parte Application for an Order Shortening Time to hear Hamilton’s motion to continue the vacate the trial date. i, ARGUMENT A. Good Cause Exists to Continue the Trial Date in This Matter. Rule 375(c) of the California Rules ef Court allows the court to continue a trial date upon an affirmative showing of good cause. A motion to continue the trial date shall be made promptly upon the necessity of the continuance being ascertained. Rule 375(c) sets forth the following: Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits ... The court may grant a continuance .., upon an affirmative showing of good cause ... Circumstances that may indicate good cause include: ... (5) The addition of a new party if: ... (A) the new party has not had a reasonable opportunity to conduct discovery and prepare for trial. (emphasis added) This case has a trial date of October 4, 2010. Plaintiff amended their complaint pursuant to court order on July 22, 2010 to substitute Hamilton for Doe Defendant #1. Hamilton received service of the complaint on August 12, 2010, less than two months prior to the trial date. Hamilton. has not had the opportunity to depose plaintiff or any percipient witnesses, serve and receive responses to discovery, conduct expert discovery, or fully investigate plaintiffs claims in this matter. Although trial dates are firm, a party may seek a continuance of a trial date through noticed motion or ex parte application "as soon as reasonably practical once the necessity for the continuance is discovered." (C.R.C. Rule 3.1332(a), (b).) "The court may grant a continuance only on an affirmative showing of good cause requiring the continuance," based on certain -2- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT HAMILTON MATERIALS. INC.'S EX PARTE APPLICATION FOR AN ORDER SHORTENING TIME TO HEAR A 1012174.1 1155-52770Oo SG YN NHN Ww 10 Wl 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ‘Walsworth, Franklin, Bevins & McCall, LLP ATIORNENS ATLAB” enumerated circumstances. (C.R.C. Rule 3.1332(c).) California Code of Civil Procedure section 128(a)(8) provides that “[e]very court shall have the power to . . . amend and control its process and orders so as to make them conform to law and justice.” Good cause exists for granting Hamilton’s Motion to Vacate the Trial Date, or in the alternative, to Continue the Trial Date. The current October 4, 2010, trial date is extremely prejudicial to Hamilton and must be continued in the interests of justice. California Rules of Court Rule 3.1332(c)(5)(A) states that good cause to continue a trial date may exist where there is a addition of a new party if: “[t]he new party has not had a reasonable opportunity to conduct discovery and prepare for trial.” B. For Good Cause Shown, the Court Has the Power to Grant Defendant Hamilton’s Ex Parte Application for an Order Shortening Time California Rules of Court, rule 317(b), authorizes the Court to shorten time for filing and service of papers other than the times specified in California Code of Civil Procedure, § 1005. The court, on its own motion, or on application for an order shortening time supported by a declaration showing good cause, may prescribe shorter times for the filing and service of papers than the times specified in California Code of Civil Procedure 1005. (C.R.C. Rule 317(b).) California Code of Civil Procedure § 1005(b) reads in pertinent part: "Unless otherwise ordered or specified by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing." California Code of Civil Procedure § 128 gives the court the power to relieve a party from the statutory non-jurisdictional time requirement. This section reads, in pertinent part: "(a) Every court shall have the power to do all of the following: (8) to amend and control its process of orders so as to make them conform to law and justice." In Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, 1377, in interpreting § 128, the court stated that: Courts have inherent equity, supervisory and administrative power.... (They) have fashioned new forms of procedures when required to deal with the rights of the parties and to manage the case load of the court. (Citations omitted) Moreover, every court has the inherent power to regulate the proceedings of matters before it and effect an orderly disposition of the issues presented." (/d. at 1378, quoting Santandrea v. Sil Tec Corporation (1976) 56 Cal.App.3d -3- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT HAMILTON ro ATERIALS. INC.'S EX PARTE APPLICATION FOR AN ORDER SHORTENING TIME TO HEAR A 1155-5.2770Oo oe IN KH AH BB WN RR NR NY NN NY DW we ee es IN HW BF BW NHN YF De we A DAW BF WH BF CS 28 ‘Watsworth, Franklin, Bevins & ‘McCall, LLP ATTORNEYS AT LAW 525, 529). Based on California Code of Civil Procedure § 128 and the holding in Cottle, this court clearly has the power to relieve Hamilton of the notice requirements of California Code of Civil Procedure, § 1005. Furthermore, § 1005(b) reads: "The court, or a judge thereof may prescribe a shorter time [for serving and filing moving and supporting papers]." Therefore, the court on a showing of good cause may grant an ex parte application. In the present case, an order shortening time for notice to hear Hamilton’s motion to continue the trial date is in the interests of justice and an efficient use of judicial resources. Cc. Good Cause Exists For the Court to Grant Defendant Hamilton’s Ex Parte Application for an Order Shortening Time for Motion to Continue the Trial Good cause exists for the court to hear its motion to continue trial on shortened notice. This matter was set for trial on October 4, 2010. Hamilton was served less than two months before the start of trial. Should Hamilton file a motion to continue on statutory notice, pursuant to Code of Civil Procedure, § 1005, the motion would be heard even closer to the eve of trial. By that time, expert discovery may be well underway, and pre-trial matters may be decided, and Hamilton will not have had sufficient time to adequately prepare for the case. As such, Hamilton requests shortened time for the motion to be heard. The interests of justice are best served if the parties are permitted additional time to continue their efforts towards resolution of this matter without the need for trial. D. An Order Allowing Hamilton’s Motion to Continue the Trial Date to be Heard on Shortened Time Would Not Prejudice Plaintiff An order granting on Hamilton’s ex parte application for an order shortening time to hear motion to continue the trial date would not prejudice plaintiff. Allowing this issue to be heard sooner rather than later will avoid undue expense and effort associated with expert discovery and trial preparation. This is not a preference case and plaintiff knowingly amended his complaint shortly prior to trial adding Hamilton as a party to the litigation. Granting Hamilton’s ex parte application for an order shortening time to hear its motion to continue the trial date will also conserve judicial resources and is in the best interest of judicial efficiency. Thus, Hamilton -4- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT HAMILTON Low MATERIALS. INC.'S EX PARTE APPLICATION FOR AN ORDER SHORTENING TIME TO HEAR A 1155-5.277028 ‘Walsworth, Franklin, Bevins & McCall, LLP ATTORNESS AT LAW respectfully requests that the Court grant its application for an order shortening time to hear the motion to continue the trial date. Il. CONCLUSION For the foregoing reasons, defendant Hamilton’s ex parte application for an order shortening time for its motion for continuing the trial date should be granted. There is no prejudice to plaintiff in granting defendant Hamilton’s ex parte application, and there is good cause for granting defendant Hamilton’s ex parte application. Accordingly, defendant Hamilton respectfully requests this Court order Hamilton’s motion to continue the trial date be heard on shortened time. Dated: August Ale , 2010 WALSWORTH, FRANKLIN, BEVINS & McCALL, LLP By: Dauk fe INGRID K. CAMPAGNE IAN P. DILLON DAVID J. KESTENBAUM Attorneys for Defendants HAMILTON MATERIALS, INC. 5- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT HAMILTON toh TERIALS. INC.'S EX PARTE APPLICATION FOR AN ORDER SHORTENING TIME TO HEAR A 1155-5.2770