Motion-Secondary: ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS

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                                BRAYTON¢PURCEL

ATTORNEYS AT L.
222 RUSH LANDING.

P.O BOX 6169
NOVATO, CALIFORNIA 94948-6169

(415) 898-1555

ELECTRONICALLY
FILED

Supertor Court of Calffornia,
County of San Francisco

03/09/2017

ALAN R. BRAYTON, ESQ., S.B. #73685
DAVID R. DONADIO, ESQ., 8.B. #154436
NANCY T. WILLIAMS, ESQ., S.B. #201095

nwilliams@braytonlaw.com Clerk of the Cou rt
BRAYTON*PURCELL LLP Deputy Clerk
Attorneys at Law

222 Rush Landing Road

P.O. Box 6169

Novato, California 94948-6169

(415) 898-1555

(415) 898-1247 (Fax No.)

Attorneys for Plaintiffs
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

ROBERT ROSS and JEAN ROSS, ASBESTOS

No. CGC-10-275731
Plaintiffs,
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
APPLICATION FOR ENTRY OF
DEFAULT JUDGMENT AGAINST
DEFENDANTS BARNES
CONSTRUCTION CO., CINCINNATI
VALVE COMPANY, DORN
REFRIGERATION AND AIR
CONDITIONING, JONES PLASTERING
COMPANY, MIDSTATE MECHANICAL,
INC., ROLLIE R. FRENCH, INC., AND S F
L, INC.

vs.

C.C. MOORE & CO. ENGINEERS;
Defendants as Reflected on Exhibit |
attached to the Summary Complaint
herein; and DOES 1-8500.

Eee

Date: May 2, 2017

Time: 9:00 a.m.

Dept.: 514, Hon. Stephen M. Murphy

Trial Date: Not Applicable

Action Filed: December 17, 2010

INTRODUCTION
Defendants BARNES CONSTRUCTION CO., CINCINNATI VALVE COMPANY,

DORN REFRIGERATION AND AIR CONDITIONING, JONES PLASTERING COMPANY,
MIDSTATE MECHANICAL, INC., ROLLIE R. FRENCH, INC. and S F L, INC. (“defendants")
were contractors or suppliers which worked with, supplied and/or disturbed asbestos-containing

products and materials.

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ENTRY OF DEFAULT JUDGMENT
AGAINST DEFENDANTS BARNES CONSTRUCTION CO., CINCINNATI VALVE COMPANY, DORN REFRIGERATION AND AIR
CONDITIONING, JONES PLASTERING COMPANY, MIDSTATE MECHANICAL, INC., ROLLIE R. FRENCH, INC., AND S F L, INC.This action for damages arises from the asbestos related injury of ROBERT ROSS and
the claims of ROBERT ROSS's spouse, JEAN ROSS. Plaintiffs filed a Complaint for Personal
Injury and Loss of Consortium action naming defendants among others. The Complaint and the
Work History attached thereto as Exhibit A, set forth the employment history of ROBERT
ROSS, evidencing ROBERT ROSS's exposure to asbestos caused by Defendants. The operative
summons, complaint and Statements of Damages were served on defendants and defendants have
each failed to defend or otherwise appear in this action. Plaintiffs have filed proofs of service of
summons on defendants as well as a requests for entry of defaults and Statements of Damages
and all other required supporting documents. Defaults has been entered. (See Requests for Entry|
of Defaults with supporting documents attached to the Declaration of Nancy T. Williams as
Exhibit "B".) Plaintiffs hereby bring this motion for default judgment on the Complaint filed
May 16, 2011.

SUMMARY OF CLAIM AND DEMAND

Injured Party ROBERT ROSS
Career: Insulator
Current Age: 81
Normal Life Expectancy: Until year 2021
Diagnosis: Asbestos-Related Colon Cancer, Asbestosis and Pleural
Disease
Spouse JEAN ROSS
Date of Marriage December 15, 1973
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ENTRY OF DEFAULT JUDGMENT
AGAINST DEFENDANTS BARNES CONSTRUCTION CO., CINCINNATI VALVE COMPANY, DORN REFRIGERATION AND AIR
CONDITIONING, JONES PLASTERING COMPANY, MIDSTATE MECHANICAL, INC., ROLLIE R. FRENCH, INC., AND S F L, INC.Demand as to Defendant BARNES CONSTRUCTION CO.
(as limited by Statement of Damages)

Location of Exposure Mount Zion Hospital, San Francisco
(See Exhibit "G" for Relevant Work History)
ROBERT ROSS's Non- $750,000.00
Economic Damages
Personal Injury)
ROBERT ROSS's $395,967.72

Economic Damages

JEAN ROSS's Non- Economic $250,000.00
Damages
Loss of Consortium)

Demand as to Defendant CINCINNATI VALVE COMPANY
(as limited by Statement of Damages)

Location of Exposure Union Oil, Rodeo, California
(See Exhibit "G" for Relevant Work History)
ROBERT ROSS's Non- $750,000.00
Economic Damages
Personal Injury)
ROBERT ROSS's $395,967.72

Economic Damages

JEAN ROSS's Non- Economic $250,000.00
Damages :
Loss of Consortium

Demand as to Defendant DORN REFRIGERATION AND AIR CONDITIONING
(as limited by Statement of Damages)

Location of Exposure Atomic Energy Commission (AEC) - Lawrence Livermore
Berkeley Laboratory, Berkeley, California
(See Exhibit "G" for Relevant Work History)

ROBERT ROSS's Non- $750,000.00
Economic Damages

Personal Injury)
ROBERT ROSS's $395,967.72

Economic Damages

JEAN ROSS's Non- Economic $250,000.00

Damages
Loss of Consortium)

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ENTRY OF DEFAULT JUDGMENT
AGAINST DEFENDANTS BARNES CONSTRUCTION CO., CINCINNATI VALVE COMPANY, DORN REFRIGERATION AND AIR
CONDITIONING, JONES PLASTERING COMPANY, MIDSTATE MECHANICAL, INC., ROLLIE R. FRENCH, INC., AND S F L, INC.Demand as to Defendant JONES PLASTERING COMPANY
(as limited by Statement of Damages)

Location of Exposure Stanford University, Palo Alto, California
(See Exhibit "G" for Relevant Work History)

ROBERT ROSS's Non- $750,000.00

Economic Damages

Personal Injury)

ROBERT ROSS's $395,967.72

Economic Damages

JEAN ROSS's Non- Economic $250,000.00
Damages
Loss of Consortium)

Demand as to Defendant MIDSTATE MECHANICAL, INC.
(as limited by Statement of Damages)

Location of Exposure Standard Oil, Richmond, California
(See Exhibit "G" for Relevant Work History)
ROBERT ROSS's Non- $750,000.00
Economic Damages
Personal Injury)
ROBERT ROSS's $395,967.72

Economic Damages

JEAN ROSS's Non- Economic $250,000.00
Damages :
Loss of Consortium

Demand as to Defendant ROLLIE R. FRENCH, INC.
(as limited by Statement of Damages)

Location of Exposure Standard Oil, Richmond, California
(See Exhibit "G" for Relevant Work History)
ROBERT ROSS 's Non- $750,000.00
Economic Damages.
Personal Injury)
ROBERT ROSS 's. $395,967.72

Economic Damages

JEAN ROSS 's Non- Economic — $250,000.00

Damages
Loss of Consortium)

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ENTRY OF DEFAULT JUDGMENT
AGAINST DEFENDANTS BARNES CONSTRUCTION CO., CINCINNATI VALVE COMPANY, DORN REFRIGERATION AND AIR
CONDITIONING, JONES PLASTERING COMPANY, MIDSTATE MECHANICAL, INC., ROLLIE R. FRENCH, INC., AND S F L, INC.Demand as to Defendant S F L, INC.
(as limited by Statement of Damages)

Location of Exposure

Embracadero Center, San Francisco

(See Exhibit "G" for Relevant Work History)

ROBERT ROSS's Non- $750,000.00
Economic Damages
Personal Injury)

ROBERT ROSS's $395,967.72

Economic Damages

JEAN ROSS's Non- Economic $250,000.00

Damages

Loss of Consortium)
SUMMARY OF DOCUMENTARY EVIDENCE

Exhibit Category Detail

A. Medical Report Medical Report of Richard Luros, M.D.

Bl. Proof of Default, Service of | Request for Default Judgment, Proof of Service
Summons, and Damages and Statement of Damages served upon
Ceiling as to BARNES Defendant.
CONSTRUCTION CO.

B2. Proof of Default, Service of | Request for Default Judgment, Proof of Service
Summons, and Damages and Statement of Damages served upon
Ceiling as to CINCINNATI Defendant.
VALVE COMPANY

B3. Proof of Default, Service of | Request for Default Judgment, Proof of Service
Summons, and Damages and Statement of Damages served upon
Ceiling as to DORN Defendant.
REFRIGERATION AND
AIR CONDITIONING

B4. Proof of Default, Service of | Request for Default Judgment, Proof of Service
Summons, and Damages and Statement of Damages served upon
Ceiling as to JONES Defendant.
PLASTERING COMPANY

BS. Proof of Default, Service of | Request for Default Judgment, Proof of Service
Summons, and Damages and Statement of Damages served upon
Ceiling as to MIDSTATE Defendant.
MECHANICAL, INC.

B6. Proof of Default, Service of | Request for Default Judgment, Proof of Service

Summons, and Damages
Ceiling as to ROLLIE R.
FRENCH, INC.

and Statement of Damages served upon
Defendant.

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ENTRY OF DEFAULT JUDGMENT

AGAINST DEFENDANTS BARNES CONSTRUCTION CO., CINCINNATI VALVE COMPANY, DORN REFRIGERATION AND AIR
CONDITIONING, JONES PLASTERING COMPANY, MIDSTATE MECHANICAL, INC., ROLLIE R. FRENCH, INC., AND S F L, INC.B7. Proof of Default, Service of | Request for Default Judgment, Proof of Service

Summons, and Damages and Statement of Damages served upon
Ceiling as to S F L, INC. Defendant.
Future Medical Damages Declaration of Frank Ganzhorn, MD
D. Non-Economic Damages Declaration of Plaintiff ROBERT ROSS
(Personal Injury)
E. Non-Economic Damages Declaration of Plaintiff JEAN ROSS
(Loss of Consortium)
F. Non-Economic Damages Declaration of James P. Nevin
G. Work history Worksite Product identification and summary of
work place exposure
H. Non-Medical Economic Declaration of Economist
Damages
I. Past Medical Billing Medical Billing Statement
SUMMARY OF PROCEDURAL HISTORY
Title of Operative Complaint Second Amended Complaint, filed May 16, 2011.
(upon which the Defendants were (See copy of Operative Complaint attached to Declaration
Defaulted) of Nancy T. Williams as Exhibit J.)
Date of the next Order to Show No date has been set yet by the Court.
Cause Re: Dismissal of Doe
defendants. Dismissal of "DOE" defendants in this case is irrelevant
to the matter of Default Judgment against Defendants
BARNES CONSTRUCTION CO., CINCINNATI
VALVE COMPANY, DORN REFRIGERATION AND
AIR CONDITIONING, JONES PLASTERING
COMPANY,MIDSTATE MECHANICAL, INC.,
ROLLIE R. FRENCH, INC. and $ F L, INC. Such
matters are better handled at the Order to Show Cause re
Dismissal hearing before the Honorable Cynthia Ming-
mei Lee.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ENTRY OF DEFAULT JUDGMENT
AGAINST DEFENDANTS BARNES CONSTRUCTION CO., CINCINNATI VALVE COMPANY, DORN REFRIGERATION AND AIR
CONDITIONING, JONES PLASTERING COMPANY, MIDSTATE MECHANICAL, INC., ROLLIE R. FRENCH, INC., AND S F L, INC.Status of Remaining Defendants This action has settled as to all non-defaulted defendants.

in the Case / Will granting of this Prove-up on Defendants BARNES CONSTRUCTION

application would resolve all CO., CINCINNATI VALVE COMPANY, DORN

remaining claims in the case: REFRIGERATION AND AIR CONDITIONING, and
JONES PLASTERING COMPANY, MIDSTATE
MECHANICAL, INC., ROLLIE R. FRENCH, INC. and S$
F L, INC. is the only aspect remaining as to the status of
defendants in this action. The granting of this application
for default judgments in this case would resolve all
remaining claims for this case with the following
exception: Plaintiffs continue to pursue claims against
bankruptcy-related asbestos trusts for recovery of
damages.

Service as to Defendant BARNES CONSTRUCTION CO.

On June 4, 2011, Defendant was served with Summons, Complaint and Statements of
Damages.

On August 3, 2011, Plaintiffs filed Proof of Service.

On August 3, 2011, Request for Entry of Default was filed and was granted by the Clerk
of Court.

On August 3, 2011, The Statements of Damages were filed with the Clerk of Court.

Since the time of service upon Defendant, amendments have been filed to the operative
complaint served on defendant on this date. Said Amendments have not materially changed the
substance of the causes of action plead against Defendant.
Service as to Defendant CINCINNATI VALVE COMPANY

On June 7, 2011, Defendant was served with Summons, Complaint and Statements of
Damages.

On August 3, 2011, Plaintiffs filed Proof of Service.

On August 3, 2011, Request for Entry of Default was filed and was granted by the Clerk
of Court.

On August 3, 2011, The Statements of Damages were filed with the Clerk of Court.

Since the time of service upon Defendant, amendments have been filed to the operative
complaint served on defendant on this date. Said Amendments have not materially changed the

substance of the causes of action plead against Defendant.

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ENTRY OF DEFAULT JUDGMENT
AGAINST DEFENDANTS BARNES CONSTRUCTION CO., CINCINNATI VALVE COMPANY, DORN REFRIGERATION AND AIR
CONDITIONING, JONES PLASTERING COMPANY, MIDSTATE MECHANICAL, INC., ROLLIE R. FRENCH, INC., AND S F L, INC.Service as to Defendant DORN REFRIGERATION AND AIR CONDITIONING

On June 20, 2011, Defendant was served with Summons, Complaint and Statements of
Damages.

On September 6, 2011, Plaintiffs filed Proof of Service.

On September 6, 2011, Request for Entry of Default was filed and was granted by the
Clerk of Court.

On September 6, 2011, The Statements of Damages were filed with the Clerk of Court.

Since the time of service upon Defendant, amendments have been filed to the operative
complaint served on defendant on this date. Said Amendments have not materially changed the
substance of the causes of action plead against Defendant.
Service as to Defendant JONES PLASTERING COMPANY

On December 4, 2011, Defendant was served with Summons, Complaint and Statements
of Damages.

On April 11, 2012, Plaintiffs filed Proof of Service.

On April 11, 2012, Request for Entry of Default was filed and was granted by the Clerk
of Court.

On April 11, 2012, The Statements of Damages were filed with the Clerk of Court.

Since the time of service upon Defendant, amendments have been filed to the operative
complaint served on defendant on this date. Said Amendments have not materially changed the
substance of the causes of action plead against Defendant.
Service as to Defendant MIDSTATE MECHANICAL, INC.

On December 4, 2011, Defendant was served with Summons, Complaint and Statements
of Damages.

On April 5, 2012, Plaintiffs filed Proof of Service.

On April 5, 2012, Request for Entry of Default was filed and was granted by the Clerk of

Court.

On April 5, 2012, The Statements of Damages were filed with the Clerk of Court.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ENTRY OF DEFAULT JUDGMENT
AGAINST DEFENDANTS BARNES CONSTRUCTION CO., CINCINNATI VALVE COMPANY, DORN REFRIGERATION AND AIR
CONDITIONING, JONES PLASTERING COMPANY, MIDSTATE MECHANICAL, INC., ROLLIE R. FRENCH, INC., AND S F L, INC.Since the time of service upon Defendant, amendments have been filed to the operative
complaint served on defendant on this date. Said Amendments have not materially changed the
substance of the causes of action plead against Defendant.

Service as to Defendant ROLLIE R. FRENCH, INC.

On November 30, 2011, Defendant was served with Summons, Complaint and
Statements of Damages.

On April 5, 2012, Plaintiffs filed Proof of Service.

On April 5, 2012, Request for Entry of Default was filed and was granted by the Clerk of
Court.

On April 5, 2012, The Statements of Damages were filed with the Clerk of Court.

Since the time of service upon Defendant, amendments have been filed to the operative
complaint served on defendant on this date. Said Amendments have not materially changed the
substance of the causes of action plead against Defendant.

Service as to Defendant S F L, INC.

On December 5, 2011, Defendant was served with Summons, Complaint and Statements
of Damages.

On April 6, 2012, Plaintiffs filed Proof of Service.

On April 6, 2012, Request for Entry of Default was filed and was granted by the Clerk of
Court.

On April 6, 2012, The Statements of Damages were filed with the Clerk of Court.

Since the time of service upon Defendant, amendments have been filed to the operative
complaint served on defendant on this date. Said Amendments have not materially changed the
substance of the causes of action plead against Defendant.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff ROBERT ROSS is a career Insulator suffering from Asbestos-Related Colon
Cancer, Asbestosis and Pleural Disease which are associated with asbestos exposure. (Complaint.
Ex. A.; Report of Richard Luros, M.D., attached as Exhibit “A” to Declaration of Nancy T.
Williams.) Plaintiffs brought this personal injury and loss of consortium action seeking recovery

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ENTRY OF DEFAULT JUDGMENT
AGAINST DEFENDANTS BARNES CONSTRUCTION CO., CINCINNATI VALVE COMPANY, DORN REFRIGERATION AND AIR
CONDITIONING, JONES PLASTERING COMPANY, MIDSTATE MECHANICAL, INC., ROLLIE R. FRENCH, INC., AND S F L, INC.from various entities responsible for ROBERT ROSS 's exposure to asbestos, including
defendants (Complaint, Ex. A.)

In addition to the “ultimate facts” set forth in each of the formal causes of action plead in
the Complaint, plaintiffs additionally pled a summary of the relevant work history. The Work
and Exposure History relevant to the claims against defendant are detailed below (see “Work and
Exposure History”).

Work and Exposure History

Plaintiff ROBERT ROSS worked at locations where, prior to ROBERT ROSS's arrival,
and while said plaintiff was present, defendants did extensive asbestos-containing work and
supplied asbestos products for said work at the locations identified on in Exhibit "G", attached to
the Declaration of Nancy T. Williams, incorporated herein. Said Exhibit demonstrates said
Plaintiff's exposure to asbestos put into Plaintiff's work space by Defendant.

Defendants each caused asbestos and asbestos containing products to be present at the
above stated jobsites and their employees disturbed asbestos containing materials and created
asbestos containing materials and asbestos fibers to become airborne and to ultimately come into
the breathing spaces of ROBERT ROSS. By defendants’ actions and inactions, ROBERT ROSS
became exposed to asbestos dust and fibers.

Asbestos-related Injuries and the Damages

Plaintiff ROBERT ROSS was diagnosed with and suffers from Asbestos-Related Colon
Cancer, Asbestosis and Pleural Disease caused by Plaintiff's exposure to asbestos for which
defendants are liable. As evidence of Plaintiff's personal injury, plaintiff submits the report of
plaintiff's medical expert, Richard Luros, M.D., attached to the Declaration of Nancy T.
Williams, filed concurrently herewith, as Exhibit "A".

ROBERT ROSS had a work history that included exposure to asbestos containing
products. Defendants caused said exposure. Plaintiff's work history was detailed in the Exhibit
A attached to the complaint. The exposure relevant to this application for default judgment is
summarized as follows: ROBERT ROSS's work history, attached in Exhibit A to the Complaint,
shows exposure to asbestos containing product caused by defendants.

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ENTRY OF DEFAULT JUDGMENT
AGAINST DEFENDANTS BARNES CONSTRUCTION CO., CINCINNATI VALVE COMPANY, DORN REFRIGERATION AND AIR
CONDITIONING, JONES PLASTERING COMPANY, MIDSTATE MECHANICAL, INC., ROLLIE R. FRENCH, INC., AND S F L, INC.Plaintiffs brought this action against defendant for personal injury and loss of consortium
alleging causes of action for Negligence, Strict Products Liability, False Representation, and/or
Premises Owner / Contractor Liability.

ROBERT ROSS was exposed to asbestos containing products supplied by defendants
and/or installed and/or disturbed by said defendants as a contractor or supplier. Such exposure
contributed to cause plaintiff's asbestos-related disease.

Damages Ceiling Set by Statement of Damages

Attached to the Williams Declaration as part of Exhibit "B", are true and accurate
photocopies of the Statements of Damages served upon defendants prior to default. The stated
amounts on the Statements of Damages serve as the ceiling on damages amount this court may
assess and is as follows:

As to Defendant BARNES CONSTRUCTION CO.:

For Plaintiff ROBERT ROSS:

Ceiling for Economic Damages: $1,250,000.00

Ceiling for Non-Economic Damages: $750,000.00
For Plaintiff JEAN ROSS:

Ceiling for Non-Economic Damages: $250,000.00

As to Defendant CINCINNATI VALVE COMPANY:

For Plaintiff ROBERT ROSS:
Ceiling for Economic Damages: $1,250,000.00
Ceiling for Non-Economic Damages: $750,000.00
For Plaintiff JEAN ROSS:
Ceiling for Non-Economic Damages: $250,000.00
As to Defendant DORN REFRIGERATION AND AIR CONDITIONING:
For Plaintiff ROBERT ROSS:

Ceiling for Economic Damages: $1,250,000.00
Ceiling for Non-Economic Damages: $750,000.00
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ENTRY OF DEFAULT JUDGMENT
AGAINST DEFENDANTS BARNES CONSTRUCTION CO., CINCINNATI VALVE COMPANY, DORN REFRIGERATION AND AIR
CONDITIONING, JONES PLASTERING COMPANY, MIDSTATE MECHANICAL, INC., ROLLIE R. FRENCH, INC., AND S F L, INC.For Plaintiff JEAN ROSS:
Ceiling for Non-Economic Damages:

As to Defendant JONES PLASTERING COMPANY:

For Plaintiff ROBERT ROSS:
Ceiling for Economic Damages:
Ceiling for Non-Economic Damages:
For Plaintiff JEAN ROSS:
Ceiling for Non-Economic Damages:

As to Defendant MIDSTATE MECHANICAL, INC.:

For Plaintiff ROBERT ROSS:
Ceiling for Economic Damages:
Ceiling for Non-Economic Damages:
For Plaintiff JEAN ROSS:
Ceiling for Non-Economic Damages:
As to Defendant ROLLIE R. FRENCH, INC.:
For Plaintiff ROBERT ROSS:

Ceiling for Economic Damages:
Ceiling for Non-Economic Damages:
For Plaintiff JEAN ROSS:
Ceiling for Non-Economic Damages:
As to Defendant § F L, INC.:
For Plaintiff ROBERT ROSS:

Ceiling for Economic Damages:

$250,000.00

$1,250,000.00

$750,000.00

$250,000.00

$1,250,000.00

$750,000.00

$250,000.00

$1,250,000.00

$750,000.00

$250,000.00

$1,250,000.00

Ceiling for Non-Economic Damages: $750,000.00
For Plaintiff JEAN ROSS:
Ceiling for Non-Economic Damages: $250,000.00
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ENTRY OF DEFAULT JUDGMENT
AGAINST DEFENDANTS BARNES CONSTRUCTION CO., CINCINNATI VALVE COMPANY, DORN REFRIGERATION AND AIR
CONDITIONING, JONES PLASTERING COMPANY, MIDSTATE MECHANICAL, INC., ROLLIE R. FRENCH, INC., AND S F L, INC.Proof of Economic Damages

Plaintiffs’ Statements of Damages were served upon defendants concurrently with service
of the operative complaint and summons. These Statements of Damages set the ceiling for
recovery of economic and non-economic damages in this action. Plaintiff ROBERT ROSS
claims future medical expenses for treatments, medical monitoring and future hospitalization.
(See a copy of ROBERT ROSS's Statements of Damages served upon defendants attached to
Declaration of Nancy T. Williams as Exhibit “B”).

In support of Plaintiff ROBERT ROSS's request for economic damages Plaintiff provides
a declaration of Internal Medicine Specialist and Pulmonologist Frank Ganzhorn, M.D. See
declaration of Dr. Ganzhorn (Williams Decl. Exh."C"). In his declaration, Dr. Ganzhorn opines
that, at a minimum, the costs of medical monitoring include one time procedures as well as
reoccurring procedures:

a. Dr. Ganzhorn opines that annual procedures include annual follow up
examinations ($300.00/yr), annual pulmonary function tests ($1,000.00/yr) and annual chest
x-rays ($300.00/yr). These total $1,600.00 per year.

Economist James Mills opines that the normal life expectancy of someone the age of
Plaintiff ROBERT ROSS would be until 2021. That is in 5 more years. A true and accurate
copy of the report of said economist, and accompanying declaration, is attached to the
Declaration of Nancy T. Williams as Exhibit "H".

The total annual medical monitoring of $1,600.00 per year multiplied by 5 more years is
$8,000.00.

b. Dr. Ganzhorn opines that a CT with High Resolution Scans occur ever two years
at $1,800.00 per scan. Plaintiff's life expectancy, divided by two (to reach a biennial figure),
equals 2.5 more years. The cost of $1,800.00 for CT exams multiplied by 2.5 more years is
$4,500.00.

c. Dr. Ganzhorn opines that, in addition to these annual and biennial costs, the
following procedures are also required: An initial complete pulmonary evaluation ($1,500.00), a
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ENTRY OF DEFAULT JUDGMENT
AGAINST DEFENDANTS BARNES CONSTRUCTION CO., CINCINNATI VALVE COMPANY, DORN REFRIGERATION AND AIR
CONDITIONING, JONES PLASTERING COMPANY, MIDSTATE MECHANICAL, INC., ROLLIE R. FRENCH, INC., AND S F L, INC.Colon Cancer Screening ($3,000.00) and at least one future hospitalization ($50,000.00). These
minimum procedures total $54,500.00.

Combined, these minimum economic damages for future medical expenses is $67,000.00
(atbtc).

The Declaration of Economist James Mills attached to the Declaration of Nancy Williams|
as Exhibit "H" provides evidence of plaintiff's damages for loss of future earning capacity and/or
Loss of Household Services.

The Medical Billing Statement attached to the Declaration of Nancy Williams as Exhibit
"I" provides evidence of plaintiffs damages for past medical expenses. This exhibit includes a
medical billing statement. It also includes a copy of the underlying medical bills.

For an injured party who carries traditional health insurance or Medicare, the current state|
of California law regarding recovery of past and future medical damages from a tortfeasor is set

forth in Howell v. Hamilton Meats, Inc. (2011) 52 Cal.4th 541 as extended and applied in

Corenbaum vy. Lampkin (2013) 215 Cal.App.4th 1308, and its progeny. Recovery owing to the
tortfeasor’s tort is no longer necessarily based on the charged amount of services; rather,
recovery can be limited by evidence of the non-recourse accepted payments and lien rights. In
short, if (and only if) there is evidence that the provider accepted a reduced amount as full
payment of past medical bills, damages for past medical expenses are limited to the amount paid
or incurred for the past medical expenses.

In accordance with the law set forth above, Plaintiff ROBERT ROSS hereby seeks to
recover the total amount paid of $13,353.72.

The following is a summary of the Economic Damages and demand:

Economic Damages SOD Limit | Proof Attached | See Exhibit Requested
Medical Expenses to $100,000.00 $13,353.72 | Exhibit "I" $13,353.72
Date
Future Medical $100,000.00 $67,000.00 | Exhibit "C" $67,000.00
Expenses and

calculation

above
Loss of Earning to Date $0.00 $0.00 | Not Shown $0.00

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ENTRY OF DEFAULT JUDGMENT
AGAINST DEFENDANTS BARNES CONSTRUCTION CO., CINCINNATI VALVE COMPANY, DORN REFRIGERATION AND AIR
CONDITIONING, JONES PLASTERING COMPANY, MIDSTATE MECHANICAL, INC., ROLLIE R. FRENCH, INC., AND S F L, INC.Loss of Future Earnings $1,000,000.00 $265,614.00 | Exhibit "H" $265,614.00

Loss of Household $50,000.00 $96,325.00 | Exhibit "H" $50,000.00
Services
Total $1,250,000.00 $442,292.72 $395,967.72

Prima Facie Evidence of Non-economic Damages

Plaintiff ROBERT ROSS has provided testimony, in accordance with CACI 3905A, as to
plaintiff's pain, mental suffering, loss of enjoyment of life, disfigurement, impairment,
inconvenience, grief, anxiety, humiliation, distress, and fear of death from cancer, as a result of
plaintiff's asbestos related disease. Said Plaintiff's Declaration is attached to the Declaration of
Nancy T. Williams as Exhibit "D".

Plaintiff JEAN ROSS has provided testimony, in accordance with CACI 3920, as to
plaintiff's loss of love, companionship, comfort, care, assistance, protection, affection, society,
and moral support, as a result of plaintiff's spouse's asbestos related disease. Said Plaintiff's
Declaration is attached to the Declaration of Nancy T. Williams as Exhibit "E".

In further support of plaintiff's reasonable request for non-economic damages, plaintiffs’
counsel, James P. Nevin, has provided a declaration detailing typical jury non-economic damages|
verdicts for cases. (See declaration of James P. Nevin attached to Declaration of Nancy T.
Williams as Exhibit ‘“F”).

Service of Statement of Damages

The following is applicable to Defendants BARNES CONSTRUCTION CO. and

CINCINNATI VALVE COMPANY: Unfortunately, the dates on the Statements of Damages

(last page of Exhibits "B1" and "B2" attached to the Declaration of Nancy T. Williams) are
incorrect. The actual Statements of Damages pre-dated the date of service of the summons and
complaint upon defendant. (See Proof of Service as part of Exhibits “B1” and "B2" to Williams
Declaration). The Statements of Damages filed at the time of the request for entry of default is
dated after the date of the service of the original Statement of Damages as the original was serve:

Ml

Knjured\19349)pkhP&A men Default Prove-up MULTL pd 15 man
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ENTRY OF DEFAULT JUDGMENT
AGAINST DEFENDANTS BARNES CONSTRUCTION CO., CINCINNATI VALVE COMPANY, DORN REFRIGERATION AND AIR
CONDITIONING, JONES PLASTERING COMPANY, MIDSTATE MECHANICAL, INC., ROLLIE R. FRENCH, INC., AND S F L, INC.with the complaint without a copy being made. (See the Declaration of Nancy T. Williams re:
Statement of Damages attached to the Williams Declaration as Exhibit "K".)
LEGAL ARGUMENT

A. PLAINTIFFS HAVE FOLLOWED THE PROCEDURAL STEPS AND
HAS DEMONSTRATED ENTITLEMENT TO DEFAULT JUDGMENT

After entry of default, upon written application, plaintiffs may apply to the Court for the
relief demanded in the complaint. (Cal. Code Civ. Proc. § 585(b).) Plaintiffs may request a
prove-up hearing wherein plaintiffs are not required to prove liability because through the entry
of default, defendant admits all the material allegations in the complaint. (Sporn v. Home Depot
USA, Inc. (2005) 126 Cal.App.4th 1294, 1303; Johnson v. Stranhiser (1999) 72 Cal.App.4th 357.
361; Bristol Convalescent Hospital v. Stone (1968) 258 Cal.App.2d 848, 859.) “The default of

the defendant in an ordinary action of this character admits, so far as such defaulting defendant is
concerned, the absolute verity of all the allegations of the complaint giving rise to liability.”
(Bristol, 259 Cal.App.2d at 859.) Cal. Code Civ. Proc. § 585(b) further provides that “the court
shall hear the evidence offered by the plaintiff, and shall render judgment in the plaintiff's favor
for that relief, not exceeding the amount stated in the complaint, in the statement required by
Section 425.11, or in the statement provided for by Section 425.115, as appears by the evidence
to be just.” (Cal. Code Civ. Proc. § 585(b).) Thus, at a prove-up hearing, the plaintiffs need only
introduce evidence establishing a prima facie case for damages to support an entry of default
judgment. (Johnson, 72 Cal.App.4th at 362-363.) “The court, in its discretion, may permit the
use of affidavits in lieu of personal testimony, as to all or any part of the evidence or proof
required or permitted to be offered, received, or heard.” (40A Cal.Jur. 3d Judgments § 40.)
Substantively, ‘[t]he judgment by default is said to ‘confess’ the material facts alleged by
the plaintiff, i-e., the defendant’s failure to answer has the same effect as an express admission of|
the matters plead in the complaint. The judgment is, in consequence, res judicata on the issue of|
the right to the relief awarded.” (6 Witkin, Cal. Procedure (4" ed. 1997) Proceedings Without
Trial §153, p. 570.)
lif

Ktnjured 19349 plPA men Defi Prove-up MULTLupd 16 mn
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ENTRY OF DEFAULT JUDGMENT
AGAINST DEFENDANTS BARNES CONSTRUCTION CO., CINCINNATI VALVE COMPANY, DORN REFRIGERATION AND AIR
CONDITIONING, JONES PLASTERING COMPANY, MIDSTATE MECHANICAL, INC., ROLLIE R. FRENCH, INC., AND S F L, INC.Defendant was served with the summons and complaint stating the facts upon which it
was required to act. Defendant has failed to appear. “[I]t is a fundamental concept of due
process that a judgment against a defendant cannot be entered unless he was given proper notice

and an opportunity to defend.” Schwab v. Southern California Gas Co. (Cal.App.4th Dist. 2004)

114 Cal. App. 4th 1308, 132.) However, a defendant who fails to appear has “deliberately
waived the right to their day in court.” (Horton v. Horton (1941) 18 Cal.2d 579, 585.) Therefore,
“[a] default judgment is an estoppel as to all issues necessarily litigated therein.” (Id. citing
Hutchings v. Ebeler & Trout 46 Cal. 557; Strong v. Shatto (1927) 201 Cal. 555; 3 Freeman on
Judgments, 5" ed., p. 2690, § 1296.)

“[I]t is sufficient to allege that an act was negligently done by defendant and that it caused]
damage to plaintiff.” (Smith v Beauchamp (1945) 71 Cal.App.2d 250, 254.) “[I]t is held in this
state, and in nearly all of the United States, that it is sufficient to allege the negligence in general
terms.” (Id.) “Because the default confesses those properly pleaded facts, a plaintiff has no
responsibility to provide the court with sufficient evidence to prove them-they are treated as true

for the purposes of obtaining a default judgment.” (Kim v. Westmoore Partners, Inc..

(Cal.App.4th 2011) 201 Cal.App.4th 267, 281.) In a default prove up hearing, the role of the
Court is simply to ensure that the damages assessment is not “so disproportionate to the evidence
as to suggest that the verdict was the result of passion, prejudice or corruption or where the
award is so out of proportion to the evidence that it shocks the conscience.” (Uva v. Evans (1978
83 Cal.App.3d 356, 362, italics added.) “It is the court's responsibility to act as a ‘gatekeeper,’
ensuring that only the appropriate claims get through and that the judgment is not inconsistent
with or in excess of the complaint.” (Heidary v. Yadollahi (2002) 99 Cal.4th 857, 868; Fasuyi v.
Permatex, Inc. (2008) 167 Cal.App.4th 681, 691, not to weigh or rebut the evidence.) By
sufficient evidence, plaintiffs have shown Defendant is liable and therefore plaintiffs should be
granted a default judgment.

B. FAULT ALLOCATION UNDER PROPOSITION 51 IS NOT REQUIRED

BEFORE A COURT MAY GRANT DEFAULT JUDGMENT AND FAILURE
TO PLEAD AFFIRMATIVE DEFENSES PRECLUDES THEIR USE

“Tn an action against several defendants, the court may, in its discretion, render judgment}

Knjured\19349ipbhP&A men Default Prove-up MULTLwpd 17 man
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ENTRY OF DEFAULT JUDGMENT
AGAINST DEFENDANTS BARNES CONSTRUCTION CO., CINCINNATI VALVE COMPANY, DORN REFRIGERATION AND AIR
CONDITIONING, JONES PLASTERING COMPANY, MIDSTATE MECHANICAL, INC., ROLLIE R. FRENCH, INC., AND S F L, INC.against one or more of them, leaving the action to proceed against the others, whenever a several
judgment is proper.’” (Mirabile v. Smith (1953) 119 Cal.App.2d 685, 688 citing Trans-Pacific
Trading Co. v. Patsy Frock & Romper Co. (1922) 189 Cal. 509.) In such cases, if the answering

defendant raises defenses not involving the defaulting defendant, there is no reason to delay entry|
of a default judgment. (Mirabile, 119 Cal.App.2d at 688; Cal. Prac. Guide Civ. Pro. Before Trial
Ch. 5-E.)

Non-economic damages liability can be apportioned according to fault under Proposition
51 only to the extent defendant (I) pleads (by affirmative defense) and proves the comparative
fault of others, and (ii) proposes a special verdict form requesting the allocation. (Cal. Prac.
Guide Pers. Inj. Ch. 3-A.)

Proposition 51 allocation of fault is not applicable in a default prove-up. This is because
“Tt]he entry of default terminates a defendant’s rights to take any further affirmative steps in the

litigation.” (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385.)

A non-answering defendant admits all material allegations in a default prove up. (See, e.g, Sporn,
126 Cal.App.4th at 1303; Johnson, 72 Cal. App. 4th at 361; Bristol, 258 Cal.App.2d at 859.)
Proposition 51 is an affirmative defense that allows a defendant to allocate fault. (Cal. Code. Civ,
Proc. 1431.2.) As a general rule, affirmative defenses must be set forth in the defendant’s
answer. (1 Cal. Affirmative Def. § 1:5 (2013 ed.) “‘[T]he defendant has the initial burden to
show that undisputed facts support each element of the affirmative defense.” (Consumer Cause,

Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468 citing Anderson v. Metalclad Insulation Corp.

(1999) 72 Cal.App.4th 284, 289-290.) Failure to plead an affirmative defense specially will
preclude evidence of the defense at trial. (Carranza v. Noroian (1966) 240 Cal.App.2d 481, 485-
486.) Defendant has neither appeared nor answered in this matter.

Similar to California, other states consider failure to plead an affirmative defense as a
waiver. “[A]n affirmative defense must be expressly asserted...” (Grzesick v. Cepela (Mich. Ct.
App. 1999) 237 Mich.App. 554, 562-63.) ““A defendant’s failure to timely and reasonably raise
and pursue the enforcement of any affirmative defense or other affirmative matter or right which
would serve to terminate or stay the litigation, coupled with active participation in the litigation

Knjured\19349ipbhP&A men Default Prove-up MULTLwpd 18 man
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ENTRY OF DEFAULT JUDGMENT
AGAINST DEFENDANTS BARNES CONSTRUCTION CO., CINCINNATI VALVE COMPANY, DORN REFRIGERATION AND AIR
CONDITIONING, JONES PLASTERING COMPANY, MIDSTATE MECHANICAL, INC., ROLLIE R. FRENCH, INC., AND S F L, INC.process, will ordinarily serve as a waiver.’” (Jones v. Fluor Daniel Services Corp. (Miss. 2010)

32 So.3d 417, 420 citing Miss. Credit Center, Inc. v. Horton (Miss. 2006) 926 So.2d 167.) States}

also hold discussion of affirmative defenses insufficient absent an expressed pleading.
“Therefore, although the Bell’s brief includes lengthy discussion of mitigation of damages,
without having pled the affirmative defense, the defense is waived.” Riddell v. Bell (Mo. Ct.
App. 2008) 262 S.W.3d 301, 305.)

Defendant has not plead Proposition 51, which is an affirmative defense. California and
other various states require affirmative defenses to be asserted in an answer. Failure to do so
constitutes a waiver. Defendant is therefore precluded from using Proposition 51 as an
affirmative defense in this matter.

Moreover, when Cal. Code Civ. Proc. 585(b) states that the court is required to render
default judgment for such sum . . . as appears to be “just,” this does not in anyway contemplate
that the court shall, or even may, reduce the just sum in consideration of Proposition 51.
Regarding provable and tangible amounts, “multiple tortfeasors still bear joint and several

liability after Proposition 51.” (Aetna Health Plans of Cal. v. Yucaipa-Calimesa Joint Unified

Sch. Dist. (1999), 72 Cal.App.4th 1175, 1190.)

Proposition 51's applicability to this case is undermined by ambiguities. Proposition 51
has numerous, unresolved issues regarding its actual effect in civil litigation. (Cal. Civ. Prac.
Torts § 4:5.) The most relevant issues in pertinent part are:

(1) is the negligence of unnamed parties considered in allocating
liability for noneconomic damages? If it is not, may a plaintiff
circumvent Civ. Code, § 1431.2 by choosing to sue only one
solvent defendant?

(2) with regard to defendants who have previously settled, what
methods may be used to determine the amount of the settlement
that is for economic damages and the amount that is for
noneconomic damages?

(3) whether Civ. Code, § 1431.2 reference to actions for personal
injury, property damage, or wrongful death, will be broadly or
narrowly construed.

(6) whether and to what extent items such as future medical
expenses and loss of future earnings qualify as objectively
verifiable medical expenses or loss of earnings and hence as

Knjured\19349ipbhP&A men Default Prove-up MULTLwpd 19 man
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ENTRY OF DEFAULT JUDGMENT
AGAINST DEFENDANTS BARNES CONSTRUCTION CO., CINCINNATI VALVE COMPANY, DORN REFRIGERATION AND AIR
CONDITIONING, JONES PLASTERING COMPANY, MIDSTATE MECHANICAL, INC., ROLLIE R. FRENCH, INC., AND S F L, INC.economic rather than noneconomic damages.
(7) whether the loss of prospective financial support and benefits _
resulting from wrongful death is an objectively verifiable economic
loss or a noneconomic loss.

(Cal. Civ. Prac. Torts § 4:5.)

Proposition 51 restricts general, non-economic damages as several only. (Cal. Civ. Code
§ 1431.2.) However, the code is ambiguous as to what specifically constitutes economic versus
non-economic damages. While Proposition 51 lists several non-economic damages, the list is
neither limited nor exhaustive. (Cal. Civ. Code § 1431.2(b)(2).) Therefore, an exact allocation
standard for non-economic damages cannot exist. Cal. Civ. Code § 1431.2 recognizes this
reality. Even in “good faith” piecemeal settlements subject to Proposition 51, plaintiffs must
only assert the ballpark share of a settling defendant’s non-economic damages. (Cal. Prac. Guide
Civ. Pro. Before Trial Ch. 12(II)-E.) The only qualifier to this “ball park” range is that it is
reasonable. (Id.)

A jury assigns fault on the basis of exactly that — fault. California Civil Code § 1431.2
states that the liability applies “based upon principles of comparative fault.” Ifa jury were to
begin to consider how much it thought was fair for a defendant to pay in economic damages, it
would be assigning liability on the basis of its assessment of who can bear the risk, not who is at
fault. The jury’s job is not to consider how much a defendant should pay; it is to consider how
much the plaintiff was injured and what percentage of that injury is attributable to the defendant.
Similarly, in a default prove up, since the material allegations of the complaint are deemed
admitted and the only issue is the amount of plaintiffs’ damages, it is this Court’s role to assess
how much the plaintiffs were damaged, and not to assess what would be fair for the defaulted
defendant to pay. “The leading object of such actions is to obtain reasonable and just
compensation for the injury sustained, comprehending both the present and the future.” (Music v.|
Southern Pac. Co. (App. 1949) 91 Cal.App.2d 93, 100; Cal. Civ. Code § 3281.) Allowing a
fairness assessment would undermine the concepts of just, reasonable and the interests of justice.

In addition to being legally prohibited, it is not factually possible. For example, how
could the Court allocate the percentage of fault for non-economic damages when there is no

Knjured\19349ipbhP&A men Default Prove-up MULTLwpd 20 man
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ENTRY OF DEFAULT JUDGMENT
AGAINST DEFENDANTS BARNES CONSTRUCTION CO., CINCINNATI VALVE COMPANY, DORN REFRIGERATION AND AIR
CONDITIONING, JONES PLASTERING COMPANY, MIDSTATE MECHANICAL, INC., ROLLIE R. FRENCH, INC., AND S F L, INC.evidence submitted (because none is required) to support various faults of any or all relevant
entities? How could the Court assess credits against economic damages without a Greathouse
ratio established by a jury between economic and non-economic damages? Moreover, as
mentioned above, Defendant would, in fact, have later remedies such as indemnity and
contribution with which to avail itself to reduce its total un-reimbursed payments to the plaintiffs |
“Thus, where one defendant defaults his default may be entered and a judgment rendered
against him, leaving the action to proceed as to the other defendants until the injured party has
received satisfaction, even though this results in different judgments as to several defendants.”

(Winzler and Kelly v. Superior Court for Humboldt County (App. 1 Dist. 1975) 48 Cal. App.3d

385, 393.) The reasoning for this rule is to allow an injured party to recover against non-
answering or defaulting defendants immediately while allowing other defendants the opportunity
to plead affirmative defenses. After a default, no jury is required as there is no issue to try.
Smith v. Billett (1860) 15 Cal. 23, 26.) “The factual determination of a referee is not binding
upon the court. The jury's assessment of damages in the event of default must be construed as no
more binding.” (Cyrus v. Haveson (App. 2 Dist. 1976) 65 Cal.App.3d 306, 318; 4 Witkin, Cal.
Procedure (2d ed.) Proceedings Without Trial, § 36.) The aim of serving a statement of damages
on defendant before default is to ensure defendant’s whom decline to contest actions do not
subject themselves to open-ended liability. (Schwab, 114 Cal.App.4th at 1320.)

Defendant has not answered or appeared in this matter. Therefore, the defendant has
waived all affirmative defenses, including Proposition 51. Judicial authority and the non-binding
status of jury damage determination allows this court to order a default judgment and assign
damages accordingly.

Cc. IT IS CLEAR THAT DETERMINATIONS AS TO FAULT REGARDING

OTHER POSSIBLE TORTFEASORS ARE IRRELEVANT TO THE
GRANTING OF DEFAULT JUDGMENT HERE

Mirabile, 119 Cal.App.2d 685, as here, where defendants have separate defenses, not
involving defaulting defendants, showed that default could be entered without fault
determination against other tortfeasors. Additionally, courts may enter a default judgment
against one tortfeasor without finding fault against other tortfeasors by separation. “It is a

Knjured\19349ipbhP&A men Default Prove-up MULTLwpd 21 man
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ENTRY OF DEFAULT JUDGMENT
AGAINST DEFENDANTS BARNES CONSTRUCTION CO., CINCINNATI VALVE COMPANY, DORN REFRIGERATION AND AIR
CONDITIONING, JONES PLASTERING COMPANY, MIDSTATE MECHANICAL, INC., ROLLIE R. FRENCH, INC., AND S F L, INC.general rule that in a civil action against two or more defendants the trial court has discretion to
order separate trials as between the plaintiff and separate defendants.” (Fisher v. Superior Court
of Los Angeles County (Cal. App. 2d Dist. 1958) 157 Cal.App.2d 126, 130.) “Thus, where one
defendant defaults his default may be entered and a judgment rendered against him, leaving the
action to proceed as to the other defendants until the injured party has received satisfaction, even
though this results in different judgments as to several defendants” Winzler & Kelly v. Superior
Court (1975) 48 Cal.App.3d 385, 393.) Once default has been entered, the defendant “cuts off its

right to appear in the action. It is ‘out of court.’” (Devlin v. Kearny Mesa AMC/Jeep/Renault.

Inc. (1984) 155 Cal. App.3d 381, 385-386.)

In Mirabile, 119 Cal.App.2d at 688, the Court of Appeal observed that “[t]here are certain
cases where default judgments were taken against defaulting defendants who were claimed to be
jointly and severally liable with the answering defendants. There, however, they set up
independent defenses not involving the defaulting defendants. “The terms of this section do not
limit the rule to actions in which the defendants have appeared and answered, but include as well
those in which some of the defendants have made default...” (Bailey Loan Co. v. Hall (Cal. 1895)}
110 Cal. 490, 492 (discussing Cal. Code Civ. Proc. § 578.) To the same effect is (Cole v.
Roebling Constr. Co. (Cal. 1909) 156 Cal. 443, 447), as applied to joint tortfeasors.

The instant action is more akin to the illustration in Mirabile, in that Plaintiff's case is
against multiple defendants with differing defenses and is unlike the scenario found in Kooper v.
King, (1961) 195 Cal. App. 2d 621, 628-629, where the action was against co-partner defendants
with the same defense to the same facts.

The court in Cuevas v. Truline Corp. (2004) 118 Cal.App.4th 56, in reviewing the one
final judgment rule for appellate proceedings found that such a rule does not “prohibit separate or
partial judgments against some, but not all, defendants.” (Id. at 60.) “Such incomplete or partial
dispositions are familiar in our jurisprudence. For example, Cal. Civ. Code § 579 allows entry of
judgment against one defendant while continuing the action against another defendant. (See

Vandenberg y. Superior Court (1999) 21 Cal.4th 815, 824; T&R Painting Construction, Inc. v.

St. Paul Fire & Marine Ins. Co. (1994) 23 Cal.App.4th 738, 742-43.) The law also permits

gud 4 en aa cag MULT gh 22 nan
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ENTRY OF DEFAULT JUDGMENT
AGAINST DEFENDANTS BARNES CONSTRUCTION CO., CINCINNATI VALVE COMPANY, DORN REFRIGERATION AND AIR.
CONDITIONING, JONES PLASTERING COMPANY, MIDSTATE MECHANICAL, INC., ROLLIE R. FRENCH, INC., AND S F L, INC.separate judgments against defaulting and non-defaulting defendants. In addition, it allows
separate judgments by summary judgment. And Proposition 51 permits separate judgments for
non-economic damages. (Cal. Civ. Code, § 1431.2 .) What the one final judgment rule prohibits
is appealing from partial dispositions while other unresolved matters remain pending against
other parties.

The court has discretion to allow default against one tortfeasor, where other tortfeasors
have separate defenses not involving default, without a fault determination. Therefore, default
should be granted against Defendant.

D. LIABILITY FOR “JUST” COMPENSATION UNDER 585(b) IS THAT WHICH

MAKES THE PLAINTIFFS WHOLE AND IS NOT CONTINGENT UPON
TORTFEASOR’S ABILITY TO PAY

“[A] negligent tortfeasor is generally liable for all damage of which his negligence is a
proximate cause.” (Henry v. Superior Court, (2008) 160 Cal.App.4th 440, 448.) Every person
who suffers detriment