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  • LOWELL R. HOELMER et al VS. 3M COMPANY et al ASBESTOS document preview
  • LOWELL R. HOELMER et al VS. 3M COMPANY et al ASBESTOS document preview
  • LOWELL R. HOELMER et al VS. 3M COMPANY et al ASBESTOS document preview
  • LOWELL R. HOELMER et al VS. 3M COMPANY et al ASBESTOS document preview
  • LOWELL R. HOELMER et al VS. 3M COMPANY et al ASBESTOS document preview
  • LOWELL R. HOELMER et al VS. 3M COMPANY et al ASBESTOS document preview
						
                                

Preview

j . Ethan A. Horn (SBN 190296) | Sarah N. Bendon (SBN 267525) NAPOLI BERN RIPKA SHKOLNIK & ASSOCIATES, LLP ELECTRONICALLY 525 S. Douglas Street, Suite 260 FILED El Segundo, California 90245 Superior Court of California, Telephone: (310) 331-8224 County of San Francisco APR 03 2013 | Facsimile: ~ | Facsimile: (310) 736-2877 Clerk of the Court : . BY: VANESSA WU Attorneys for Plaintiffs Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO LOWELL R. HOELMER and LaVON M. ) CaseNo. CGC-11-275843 HOELMER, 5 | ) PLAINTIFFS’ RESPONSE TO ORDER TO | ) SHOW CAUSE RE DISMISSAL i Plaintiffs, ) i } Date: April 18, 2013 i vs. ) Time: 1:30 p.m. | ) Dept: 206 | 3M COMPANY, et al. ) : ) 16 ) 17 ) Defendants, ) 18 19 20 TO THE COURT AND ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: 21 Plaintiffs and their counsel of record offer the following facts to explain their failure to appear at 22 “the Trial Setting Conference held on February 21, 2013 in this action in an effort to prevent dismissal of 23, this matter. 24 As set forth herein, Plaintiffs’ failure to appear at the hearing as the result of an excusable calendaring mistake arising from confusion over the scheduling of proceedings in the two Hoelmer actions currently pending before this court, such that dismissal of this action would be unjust. 1 PLAINTIFF’S RESPONSE TO ORDER TO SHOW CAUSE RE DISMISSALBy way of background, on June 13, 2011, Lowell Hoclmer and LaVon Hoelmer filed an / asbestos related Personal Injury and Loss of Consortium complaint arising from Mr. Hoelmer’s _ diagnosis of mesothelioma (Case No. CGC-11-275843). (Declaration of Sarah Brendon at 4] 2) On September 28, 2011, plaintiff Lowell Hoelmer passed away due to his malignant * mesothelioma. (Declaration of Sarah Brendon at 43) On February 29, 2012, LaVon Hoelmer and the other heirs of Lowell Hoelmer filed a Wrongful Death/Survival and Loss of Consortium complaint (Case No. CGC-12-276002). (Declaration of Sarah Brendon at (4) The original Personal Injury and Loss of Consortium action was not amended to a Wrongful Death/Survival and Loss of Consortium action, rather, a separate Wrongful Death/Survival and Loss of Consortium complaint was filed. (Declaration of Sarah Brendon at 44) Thereafter, this Court set Trial Setting Conferences in both actions to take place on February 21, 2013. In approximately early February 2013, plaintiffs’ former counsel, Kristina Hoban, directed that _a Trial Setting Conference for the “Hoelmer” action be calendared for appearance on February 21, 2013, on counsels’ internal calendar by Dani Budetti, a legal secretary with Napoli Bern Ripka _ Shkolnik. (Declaration of Dani Budetti at (2) Unfortunately, a single Trial Setting Conference was _calendared and not one for each action. (Declaration of Dani Budetti at (2) Subsequent to the calendaring of the Trial Sctting Conference in “Hoe/mer”, Ms. Hoban then - erroneously concluded that that Trial Setting Conference in the Wrongful Death/Survival and Loss of _ Consortium action had been moved to the April Trial Setting Conference docket and thus, instructed "Dani Budetti to remove the “Hoelmer” Trial Setting Conference date from counsels’ internal calendar. (Declaration of Dani Budetti at 43) As such, the Trial Setting Conference date that had been calendared was erroneously removed from plaintiffs’ counsel’s calendar. Since neither the Trial Setting Conferences in the Wrongful 2 PLAINTIFF'S RESPONSE TO ORDER TO SHOW CAUSE RE DISMISSAL| Death/Survival and Loss of Consortium and the Personal Injury and Loss of Consortium actions were -calendared, plaintiffs counsel did not know about the hearings and did not attend the Trial Setting Conferences. In order to facilitate judicial economy and avoid future confusion, plaintiffs’ counsel is ° attempting to seek consolidation of these two actions. On March 29, 2013, plaintiffs proposed a stipulation and order thereon to all counsel requesting that the two aforementioned actions be consolidated as they arise out of the same underlying facts and make similar legal contentions. Should all parties not agree to consolidation, plaintiffs will file a formal motion requesting same. Plaintiffs respectfully request that this Order to Show Cause be discharged and taken off- calendar as plaintiffs’ Trial Setting Conference for plaintiffs’ Personal Injury and Loss of Consortium - action was not attended by plaintiffs’ counsel due to an excusable mistake arising from confusion over these two related actions which resulted in a failure to properly calendar either matter. To allowa _ dismissal to issue would result in an injustice to LaVon Hoelmer whose would potentially lose her right to her past loss of consortium claim due to no fault of her own. | DATED: 4/3/2013 NAPOLI BERN RIPKA SHKOLNIK & ASSOCIATES, LLP Sf OF DAZ een By: Sarah 'N. Bendon, Attorneys for Plaintiff 3 PLAINTIFF'S RESPONSE TO ORDER TO SHOW CAUSE RE DISMISSAL