On December 17, 2010 a Motion-Secondary was filed involving a dispute between Ross, Jean, Ross, Robert, and Acco Engineered Systems, Inc., Advanced Mechanical, Advance Mechanical Contractors, Inc., Air Systems Mechanical Contractor, A & K Heating Company, Inc., Albay Construction Company, Allen-Simmons Heating & Sheet Metal Company Inc., Allied Fire Protection, Allied Sprinkler Company, Inc., Allsberry Mechanical Corporation, Anderson, Rowe & Buckley, Inc., Associated Insulation Of California, A. Teichert & Son, Inc., Balliet Bros. Construction Corporation, Banner Drywall & Painting Co. Inc., Barnes Construction Co., Bayer Cropscience Inc., Bayer Cropscience, Inc., Successor To Amchem, Bell Products Inc., Beta Mechanical Contractors, L.P., Bragg Investment Company, Inc., Cahill Construction Co., Inc., Cahill Construction Services, Inc., Cahill Contractors, Inc., California Drywall Co., Castro Construction, Inc., C.C. Moore & Co. Engineers, Cincinnati Valve Company, Cjr Plastering, Clausen-Patten, Inc., Clausen-Patten, Inc., A Dissolved Corporation, Climate Air, Inc., Climate Control Co., Inc., Collins Electrical Company, Inc., Commair Mechanical Services, Consolidated Insulation, Inc., Cosco Fire Protection, Inc., Cosco Sprinkler, Critchfield Mechanical, Inc., C & R Plastering, Inc., Csk Auto, Inc., Cupertino Electric, Inc., Delucchi Sheet Metal Works, Dilland Sederberg Plumbing, Does 1-8500, Domco Products Texas Inc., Domco Products Texas, L.P., Donovan Construction, Dorn Refrigeration, Dorn Refrigeration And Air Conditioning, Dpr Construction, Duro Dyne Corporation, D.W. Nicholson Corporation, D. Zelinsky & Sons, Inc., Emil J. Weber Electric Co., Erwin Mechanical Inc., Ex- Fme, Inc. (Fka Fischbach And Moore Electric,, Fairmont Hotel Company, Fluor Corporation, Foley Electric Co., Foley Electric, Inc., Fuller Floors, General Mills, Inc., Giampolini & Co., Graybar Electric Company, Inc., Hanson Permanente Cement, Inc. Formerly Known As, Harold Beasley Plumbing And Heating, Inc., Harry Lee Plumbing & Heating, H & C Investment Associates, Inc., Henry C. Beck Company, Imperial Plastering & Drywall, Insulation Specialties, Inc., James A. Nelson Co., Inc., Johnson Controls, Inc., Jones Plastering Company, Joseph Bruno Sheet Metal Co., Inc., J.T. Thorpe & Son, Inc., J.W. Mcclenahan Company, J.W. Mcclenahan Company, Inc., Kentile Floors, Inc., Laub Sheet Metal Works, Lone Star Industries, Inc., Mack Construction Co., Magee, Robert, Malm Metal Products, Inc., Marine Engineering And Supply Company, Marshco Auto Parts, Inc., Mattock Construction Company, Mcclure Electric, Inc., Metropolitan Life Insurance Company, Michael Brothers, Midstate Mechanical, Inc., Mitchell Bros. Truck Lines, Inc., Monsanto Company, Sued As "Pharmacia Corporation", Oakfabco, Inc., Ortho-Craft, Pacific Fireproofing, Pacific Mechanical Corporation, Parker Insulation Contracting & Supply Co. Inc., Perini Corporation, Pharmacia Corporation, Which Will Do Business In, Pribuss Engineering, Pribuss Engineering, Inc., Raymond Interior Systems-North, Red Top Electric Co. Emeryville, Inc., Robert Magee, Rollie R. French, Inc., Rollins Construction, Rountree Plumbing & Heating Inc., Scott Co. Of California, S F L, Inc., S.J. Amoroso Construction Co., Inc., Slakey Brothers, Inc., Sugden Engineering Co., Swinerton Builders, Temper Insulation, Temporary Plant Cleaners, Inc., Texaco, Inc., The Goodyear Tire & Rubber Company, The W.W. Henry Company, Tuttle And Bailey Corp, Van Mulder Sheetmetal, Van-Mulder Sheet Metal, Inc., Walnut Creek Sheet Metal, Furnace & Air, W.C. Thomason, W.C. Thompson, Webcor Builders, Inc., Westburne Supply, Inc., Willard Electric, Wright Schuchart Harbor, Wright Schuchart Harbor Company, Ross, Jean, Ross, Robert, for civil in the District Court of San Francisco County.
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BRAYTON®PUR (415) 898-1555 DAVID R. DONADIO, ESQ., S.B. #154436 SreS eOnicatey, DDonadio@braytonlaw.com FILED MICHAEL ESPINOSA, ESQ., S.B. #312882 Superior Court of California, mespinosa@braytonlaw.com County of San Francisco BRAYTON*PURCELL LLP 05/14/2018 Attorneys at Law Clerk of the Court 222 Rush Landing Road ee P.O. Box 6169 Deputy Clerk Novato, California 94948-6169 (415) 898-1555 Attorneys for Plaintiffs Tentative Ruling Contest Email: contestasbestosTR@braytonlaw.com SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO ROBERT ROSS and JEAN ROSS, ) ASBESTOS ) No. CGC-10-275731 Plaintiffs, ) ) MEMORANDUM OF POINTS AND vs. ) AUTHORITIES IN SUPPORT OF ) MOTION FOR ORDER MAINTAINING C.C. MOORE & CO. ENGINEERS; ) THE CURRENT TRIAL DATE WITH Defendants as Reflected on Exhibit | ) PREFERENCE attached to the Summary Complaint ) herein; and DOES 1-8500. ) — [C.C.P. § 36(a); C.C.P. § 36.5] Date: June 13, 2018 Time: 9:30 a.m. Room 503: The Hon. Lynn O’Malley-Taylor Trial Date: July 9, 2018 Filing Date: December 17, 2010 lL INTRODUCTION Plaintiff JEAN ROSS is 81 years of age and in deteriorating physical health. On December 17, 2010, plaintiff filed the Complaint herein alleging damages for personal injury for her asbestos-related lung disease. At the April 20, 2017 Status Conference, this case was given a trial date of November 13, 2017. At Trial Call on November 13, 2017, the matter was given a return date of December 11, 2017. At Trial Call on December 11, 2017, the matter was given a return holding date of March 26, 2018, and at Trial Call on March 26, 2018, the matter was given a return date of July 9, 2018. One defendant remains. Ksllnjured\1934S\pld p&a MEP (36A) Maintain ID pd 1 MXE MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER MAINTAINING THE CURRENT TRIAL DATE WITH PREFERENCEAs set forth in the declaration of plaintiff IEAN ROSS, and the declaration of plaintiff's counsel pursuant to C.C.P. § 36.5, plaintiffs health is significantly impaired and expected to deteriorate. Plaintiff has a substantial interest in this litigation and her health is such that a preference is necessary to prevent prejudicing this interest. Plaintiff's age and deteriorating physical condition make granting of C.C.P. § 36(a) trial preference appropriate in order to maintain the July 9, 2018 trial date and increase plaintiff's chance of being able to actively participate in her case. It is requested that the current trial date be maintained, as a preference case pursuant to C.C.P. § 36, I. ARGUMENT A. CODE OF CIVIL PROCEDURE SECTION 36(a)MANDATES PREFERENCE IN SETTING CASES FOR TRIAL WHERE A PARTY IS OVER THE AGE OF 70 AND HER HEALTH IS SUCH THAT PREFERENCE IS NECESSARY TO PREVENT PREJUDICING HER INTERESTS IN THE LITIGATION. C.C.P. § 36(a) provides, in pertinent part: (a) A party to a civil action who is over the age of 70 years may petition the court for preference, which the court shall grant if the court makes all of the following findings: (1) The party has a substantial interest in the action as a whole. (2) The health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation . Plaintiff JEAN ROSS is 81 years of age, as stated in her Declaration dated May 4, 2018, as well as in her verified Responses to Standard Asbestos Case Interrogatories, and is suffering from congestive heart failure, chronic obstructive pulmonary disease (“COPD”), peripheral vascular disease (“PVD”), atrial fibrillation, fibromyalgia, and high blood pressure. Symptoms caused by these diseases limit her ability to concentrate and communicate clearly. Her ability to engage and assist counsel, and to participate meaningfully in the litigation are also limited and will become progressively worse. Her medical condition will continue to decline over time jeopardizing her ability to attend the trial at all. lif Ksllnjured\1934S\pld p&a MEP (36A) Maintain ID pd 2 MXE MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER MAINTAINING THE CURRENT TRIAL DATE WITH PREFERENCEAs plaintiff is over 70 years of age and her health is impaired and expected to decline, trial preference is necessary to prevent prejudicing her interest in the litigation. (S)ection 36 was enacted for the purpose of assuring that an aged or terminally ill plaintiff would be able to participate in the trial of his or her case and be able to realize redress upon the claim asserted. (fn 12) Such a preference is not only necessary to assure a party’s peace of mind that he or she will live to see a particular dispute brought to resolution but it can also have substantive consequences. The party's presence and ability to testify in person and/or assist counsel may be critical to success. In addition, the nature of the ultimate recovery can be adversely affected by a plaintiff's death prior to judgment. (See, e.g., § 377.34.) fn 12 - This is not only the obvious intent of the words used in the statute, it is borne out by the legislative history. The comment to the digest of the legislation relating to section 36 by the Assembly Committee on Judiciary states: “This Bill would provide an early trial date for persons who because of their advanced age or serious medical problems might die or become incapacitated. before their cases come to trial.” (Looney y. Superior Court(1993) 16 Cal. App. 4th 521, 532.) C.C.P. §36(a) differs from §36(d). While (d) requires “clear and convincing medical documentation” and is discretionary, (a) is mandatory and includes no such documentation requirement. Indeed, C.C.P. § 36.5 provides that 36(a) may be supported by an attorney affidavit, based solely on information and belief. The declaration can consist entirely of hearsay and conclusions. (Weil & Brown, Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2016) J 12:247.1, at p. 12(1)-42). This declaration is expressly admissible for the purpose of supporting a finding by the court that a party’s medical diagnosis and prognosis is such that a preference is necessary to prevent prejudicing her interests in the litigation. The attorney affidavit based on information and belief is based on information provided by the plaintiff, and any reviewed medical records or communications from the plaintiff's treating physicians. In fact, the Court of Appeal recently confirmed that “[t]he standard under subdivision (a), unlike under subdivision (d), which is more specific and more rigorous, includes no requirement of a doctor’s declaration. To the contrary, a motion under subdivision (a) may be supported by nothing more than an attorney’s declaration ‘based upon information and belief as to the medical diagnosis and prognosis of any party.’ (§ 36.5; accord Weil & Brown, Cal. Ksllnjured\1934S\pld p&a MEP (36A) Maintain ID pd 3 MXE MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER MAINTAINING THE CURRENT TRIAL DATE WITH PREFERENCEPractice Guide: Civil Procedure Before Trial (The Rutter Group 2017) ¥ 12:247.1, p. 12(D-44 [attorney declaration under section 36.5 ‘can consist entirely of hearsay and conclusions’].)” (Fox v. Superior Court (2018) 21 Cal. App. 5th 529, 534.) In other words, the attorney declaration pursuant to C.C.P. section 36.5 is not intended as an expert declaration necessitating a foundation for an expert opinion. The attorney declaration regarding the medical health of the plaintiff based on information and belief is not admissible for any purpose other than a motion for preference under C.C.P. section 36(a) for this very reason. (C.C.P. §36.5; see also, Weil & Brown, Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2016) {j 12:247.2, at p. 12(1)-43.) Indeed, plaintiff is not required to submit a doctor’s declaration or medical records to attest to the plaintiff's own declining health. Plaintiff is not required to be an “expert” to proffer her own opinions and factual knowledge regarding the status of her health from her own personal experience or from what her doctors are informing her. In this regard, it is important to note that prior to 1991 preference was mandatory for anyone over 70, without any additional finding other than the party had a substantial interest in the case. In 1991, this was changed so that a party must be over 70 AND the party’s health would prejudice the party’s interest unless preference was granted.' But while the legislature strengthened the requirements for preference - no longer automatically granting it to anyone over the age of 70 - it simultaneously liberalized the showing necessary for a court to find that a party’s health would prejudice his or her interests unless preference was granted. Both the added requirement of 36(a) and the new section 36.5, It Hl ‘CCP § 36 -DIGEST COMMENT: AB 3811, W. Brown. Courts: calendar preference for aged parties. “Under existing law, the courts are required to give preference on the calendar to any civil action involving a party 70 years of age or older who petitions the court, unless the court determines that the petitioning party does not have a substantial interest in the case as a whole. This bill would instead require a court to grant a preference upon motion of a party 70 years of age or older if the court finds that the party has a substantial interest in the case as a whole and the health of the party makes the preference necessary to avoid prejudicing his or her interests.” Ksllnjured\1934S\pld p&a MEP (36A) Maintain ID pd 4 MXE MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER MAINTAINING THE CURRENT TRIAL DATE WITH PREFERENCEallowing for the additional requirement to be supported by an attorney’s affidavit based upon information and belief, became effective on January 1, 1991.7 A final rule applicable to facial evaluation of a statute is that “every word, phrase or provision is presumed to have been intended to have a meaning and perform a useful function” (Mahdavi v. Fair Employment Practice Com. (1977) 67 Cal.App.3d 326, 334 [136 Cal.Rptr. 421]) and a statute should be so construed where possible. J. R. Norton Co. v, Agricultural Labor Relations Bd. (1979) 26 Cal.3d 1, 36-37 [160 Cal.Rptr. 710, 603 P.2d 1306].) (Rice v. Superior Court, (1982) 136 Cal. App. 3d 81, 86.) Accordingly, it is clear the new requirement and the liberal means of proof were meant to be complimentary and read together. A 36(a) motion need not be supported by medical documentation, it being expressly recognized by 36.5 that such a motion may be supported by an attorney declaration based upon information and belief. It must be concluded that Section 36, subdivision (a) has the purpose of protecting a substantive right and, accordingly, is mandatory to effect that protection. The Assembly Committee comments show that the purpose of subdivision (a) is to safeguard litigants beyond a specified age against the legislatively acknowledged risk that death or incapacity might deprive them of the opportunity to have their case effectively tried and the opportunity to recover their just measure of damages or appropriate redress.’ “The issue under subdivision (a) is not whether an elderly litigant might die before trial or become so disabled that she might as well be absent when trial is called. Provided there is evidence that the party involved is over 70, all subdivision (a) requires is a showing that that party’s ‘health . . . is such that a preference is necessary to prevent prejudicing [her] interest in the litigation.” (Fox, supra, 21 Cal. App. Sth ? CCP §36.5 - DIGEST COMMENT: AB 3820, W. Brown. Courts: trial court delay reduction. “Existing law provides that a civil case is entitled to preference upon motion of a party who has reached the age of 70 years, except as specified. This bill would authorize an affidavit in support of such a motion to be signed by an attorney for the party seeking preference, as specified.” > E.g., Probate Code section 573 provides that, “When a person having a cause of action dies before judgment, the damages recoverable by his executor or administrator are limited to such loss or damage as the decedent sustained or incurred prior to his death, . . . and shall not include damages for pain, suffering or disfigurement.” Ksllnjured\1934S\pld p&a MEP (36A) Maintain ID pd 5 MXE MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER MAINTAINING THE CURRENT TRIAL DATE WITH PREFERENCECo oN DAH FF wWwN cs at 534 [italics in original].) There can be no dispute that entitlement to a preferential trial date safeguards a substantive right to recover damages for pain, suffering and disfigurement. (Rice vy. Superior Court, supra,136 Cal. App. 3d at 88-89.) Here, plaintiff is not only of advanced age, but in a significantly impaired state of health. Absent an early trial date, plaintiff will be deprived of an opportunity to fully and fairly present case and to recover her just and appropriate damages. Indeed, “[{s]ubdivision (a) requires the granting of calendar preference to ‘prevent’ prejudice to a stricken litigant’s interests.” (Fox, supra, 21 Cal. App. Sth at 536 [italics in original].) The findings required by C.C.P. § 36(a) clearly exist, supported by both a decline in plaintiff's health and the declaration of counsel on information and belief as expressly allowed pursuant to C.C.P. § 36.5. “Where a party meets the requisite standard for calendar preference under subdivision (a), preference must be granted. No weighing of interests is involved.” (Fox, supra, 21 Cal. App. Sth at 535 [italics in original].) The policy underlying 36(a) - to safeguard plaintiff against the legislatively acknowledged risk that the declining health of a party might deprive her of the opportunity to have her case effectively tried and to recover her just measure of damages or appropriate redress - mandates an order granting preference. CONCLUSION As plaintiff JEAN ROSS is 81 years of age and her condition is progressively deteriorating, trial preference is necessary to prevent prejudicing her interest in the litigation. Plaintiff JEAN ROSS should be granted preference and the trial date of July 9, 2018, should be maintained pursuant to C.C.P. §36 so that she be assured an opportunity to participate actively in her own trial. No acceleration of proceedings is being sought. Dated: Sy Ye : BRAYTON*PURCELL LLP By. David R. Donadio Attorneys for Plaintiffs Ktnjuredd19349%pidip&e MFP (36A) MaintainTD, dojucesni9345ipidiphe MEP (Q6A)MainainTDypd Gages MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER MAINTAINING THE CURRENT TRIAL DATE WITH PREFERENCE