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

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                28

Watsworth,
Franklin,
Bevins &

MeCali, LLP

ATTORNENS ATLA

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@wibm.com Superior Court of California,
WALSWORTH, FRANKLIN, BEVINS & McCALL, LLP County of San Francisco
601 Montgomery Street, Ninth Floor AUG 31 2010
San Francisco, California 94111-2612 Clerk of the Court
Telephone: (415) 781-7072 BY: JUDITH NUNEZ
Facsimile: (415) 391-6258 Deputy Clerk
Attorneys for Defendant
HAMILTON MATERIALS, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
CHARLES HUSBAND, Case No. CGC-09-275098
Plaintiff, Judge: Hon. Harold E. Kahn
Dept: 220
vs. Date: September 8, 2010

Time: 9:30 a.m.

ASBESTOS DEFENDANTS, et al.,

MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
DEFENDANT HAMILTON
MATERIALS, INC.'S MOTION TO
CONTINUE THE TRIAL DATE

Complaint Filed: March 2, 2009
Trial Date: October 4, 2010

Defendants.

MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION
Defendant Hamilton Materials Inc. (“Hamilton”) moves this Court for an order vacating the
trial date, or in the alternative, to continue the trial date. Charles Husband (“plaintiff”) filed this
lawsuit on March 2, 2009. On July 22, 2010, this Court entered an order allowing plaintiff to
amend his complaint to include Hamilton as a defendant. Hamilton was served with a Summons
and Complaint in this matter on August 12, 2010. This matter is set for trial on October 4, 2010.

Hamilton moves this Court to enter an Order 1} vacating the current trial date in this case of

-1-
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT HAMILTON
TERIALS, INC.'S MOTION TO HEAR A MOTION TO CONTINUE THE TRIAL DATE

1012246.
1 1334577028

‘Walsworth,
Franklin,
Bevins &

‘McCall, LLP

ATTORNEYS ATLA

October 4, 2010; 2) setting this matter for a new Status and Setting Conference at least six months
out; 3) allowing discovery to remain open in this matter pursuant to the new trial date, once one is
assigned; and 4) entitling the parties to have Motions for Summary Judgment heard prior to the
new trial date, once one is assigned, pursuant to the deadlines set forth in the Code of Civil
Procedure; or 5) continuing this trial to any other time that this Court determines suitable. This
would allow Hamilton the ability to conduct necessary discovery, depose the plaintiff and any
percipient witnesses, and file a Motion for Summary Judgment, should one be appropriate.
Plaintiff would not be prejudiced by this delay, whereas Hamilton would be greatly prejudiced
should it not be able to adequately and appropriately prepare for trial in this matter.
Il. STATEMENT OF FACTS

Brayton Purcell filed this personal injury lawsuit on March 2, 2009 on behalf of plaintiff in
San Francisco Superior Court. (Kestenbaum Declaration { 3; Exhibit A). Plaintiffs filed an
amended complaint adding Hamilton Materials, Inc. (“Hamilton”) as Doe Defendant #1 on July 22,
2010. (Kestenbaum Declaration J 4; Exhibit B). Hamilton was served with the Summons and
Complaint on August 12, 2010. (Kestenbaum Declaration { 5). This matter is set for trial on
October 4, 2010. (Kestenbaum Declaration [ 6). Hamilton has not had the opportunity to conduct
discovery in this matter. (Kestenbaum Declaration 7). Hamilton has not had the opportunity to
depose plaintiff or any percipient witnesses. (Kestenbaum Declaration { 8). Hamilton has not had
the opportunity to file dispositive motions in this matter. (Kestenbaum Declaration § 9). Vacating
the trial date or granting a continuance will not prejudice the plaintiff or other parties in this case.
Unless the trial date is continued, Hamilton will not have an opportunity to conduct meaningful
discovery in this case, or to file a Motion for Summary Judgment. (Kestenbaum Declaration { 10).

Ill. LEGAL ARGUMENT

A. THIS COURT HAS THE POWER TO CONTINUE THE TRIAL DATE UPON
GOOD CAUSE SHOWN

Although trial dates are firm, a party may seek a continuance of a trial date through motion
or 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

-2-

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT HAMILTON
MATERIALS, INC.'S MOTION TO HEAR A MOTION TO CONTINUE THE TRIAL DATE

1012246.1
1155-5.277028

‘Walsworth,
Franklin,
Bevins &

‘McCall, LLP

LATTORNEYSAT LAR

affirmative showing of good cause requiring the continuance," based on certain 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.”

The Court may also consider additional factors when determining whether a continuance is
proper, including:

qd) Proximity of the trial date;

(2) Whether there was any previous continuance, extension of
time, or delay of trial due to any party;

(3) The length of the continuance requested;

(4) The availability of alternative means to address the problem
that gave rise to the motion or application for a continuance;

(5) The prejudice that parties or witnesses will suffer as a result

of the continuance;

am The court's calendar and the impact of granting a continuance
on other pending trials;

(9) Whether all parties have stipulated to a continuance;

(10) Whether the interests of justice are best served by a
continuance, by the trial of the matter, or by imposing conditions on
the continuance;

(11) Any other fact or circumstance relevant to the fair
determination of the motion or application.

(C.R.C. Rule 3.1332(d).)

“The trial judge must exercise his discretion with due regard to all interests invelved,
however the refusal of a continuance which has the practical effect of denying the applicant a fair
hearing is reversible error.” (In Re Marriage of Hoffmeister (1977) 161 Cal.App.3d 1163, 1169
(quoting 4 Witkin, Cal. Procedure (2d ed. 1971), Trial, section 8, pp. 2865-2866).) Moreover,
“absent a lack of diligence or other abusive circumstances, a request for a continuance supported by

-3-

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT HAMILTON
MATERIALS, INC.'S MOTION TO HEAR A MOTION TO CONTINUE THE TRIAL DATE

1012246.1
1155-5.2770eo Om NY DA KH BF WN

NY NY N NO NY NN Rm ee
YA A BRB YW HO |= So way DHA BW NH *

28

Walsworth,
Franklin,
Bevins &

McCall, LLP

ATTORSEYSAT LAE

a showing of good cause usually ought to be granted.” (Estate of Meeker (1993) 13 Cal.App.4th
1009, 1105.)

Hamilton was served with Summons and Complaint two months before the commencement
of trial. As such, Hamilton is at a distinct disadvantage because it has not had the opportunity to
reasonably and effectively conduct discovery in this matter nor the opportunity to prepare for trial.
Unless the trial date is continued or vacated, Hamilton will not be able to put on a meaningful
defense in this matter due to the short time frame between gathering discovery responses and
preparing for trial.

It is unlikely that any other parties will be prejudiced by a decision to vacate or continue the
trial date, as discovery is ongoing. An Order granting Hamilton’s Motion Vacate the Trial Date, or
in the alternative, to Continue the Trial Date will, likewise, not prejudice plaintiff. This case does
not and will not qualify for preference pursuant to California Code of Civil Procedure section 36.
Continuing the trial date will still allow plaintiff to have his day in court, while affording Hamilton
a fair opportunity to participate in this matter and put on a meaningful defense.

For these reasons, we ask the Court to vacate the trial date and assign this matter for a
Status and Setting Conference, or, in the alternative, to continue the trial date to allow Hamilton to
conduct discovery. Such relief will give Hamilton the time it needs to conduct discovery and
evaluate this matter in preparation for trial.

IV. CONCLUSION

Hamilton was served with the Summons and Complaint just over four months before trial
was set to begin. Hamilton has not had the opportunity to conduct meaningful discovery in this
matter and will be greatly prejudiced should the October 4, 2010 trial date not be vacated.
Therefore, Hamilton respectfully requests that the trial date be vacated and this matter set for a
Status and Setting Conference not less than six months out, allow discovery to remain open in this
matter pursuant to the new trial date, once one is assigned; and that the parties be entitled to have
Motions for Summary Judgment heard prior to the new trial date, once one is assigned, pursuant to
the deadlines set forth in the Code of Civil Procedure. In the alternative, Hamilton requests that

this Court continue the trial to any other time that this Court determines suitable. Doing so will

4.
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT HAMILTON
MATERIALS, INC.'S MOTION TO HEAR A MOTION TO CONTINUE THE TRIAL D.eo Oo IN DW

10

11]

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Walsworth,
Franklin,
Bevins &

‘McCall, LLP
arronsessariaw

allow Hamilton to participate meaningfully in its own defense.

Dated: August 31, 2010 WALSWORTH, FRANKLIN, BEVINS & McCALL, LLP

By: eu (—

INGRID K. CAMPAGNE

TAN P. DILLON

DAVID J. KESTENBAUM
Attomeys for Defendant
HAMILTON MATERIALS, INC.

5.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT HAMILTON
1012246.1 MATERIALS, INC.'S MOTION TO HEAR A MOTION TO CONTINUE THE TRIAL DATE
1

1$5-5.2770