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

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                                BRAYTON®PURCELL LLP
ATTORNEYS AT LAW
222 RUSH LANDING ROAD

PO BOX 6169
NOVATO, CALIFORNIA 94948-6169

(A415) 898-1555

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

NWilliams@pbraytonlaw.com ELECTRONICALLY
BRAYTON®PURCELL LLP FILED
Attorneys at Law ‘Califor’
222 Rush Landing Road a ccungoraun menemeot
P.O. Box 6169

Novato, California 94948-6169 03/25/2016
(415) 898-1555 BY:NADITA MASON
(415) 898-1247 (Fax No.) Deputy Clerk

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
DEFENDANT S F L, INC.

VS.

C.C. MOORE & CO. ENGINEERS;
Defendants as Reflected on Exhibit 1

attached to the Summary Complaint
herein; and DOES 1-8500.

Hearing Date: May 24, 2016

Time: 9:00 a.m.

Dept.: 514, Hon. Joseph M. Quinn

Trial Date: Not Applicable

Filing Date: December 17, 2010
INTRODUCTION

Defendant S F L, INC. (“defendant") was a contractor in California which worked with,
supplied and/or disturbed asbestos-containing products and materials.

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 defendant one of several defendants, 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 Defendant.
The operative summons, complaint and Statement of Damages were served on defendant and

defendant has failed to defend or otherwise appear in this action. Plaintiffs have filed proof of

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ENTRY OF DEFAULT JUDGMENT
AGAINST DEFENDANT S F L, INC.service of summons on defendant as well as a request for entry of default and Statements of
Damages and all other required supporting documents. Default has been entered. (See Request
for Entry of Default 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
Asbestos Injured Party ROBERT ROSS
Career: Insulator
Current Age: 80
Life Expectancy: Until 2021 (5 years)
(See Exhibit "H" for Report of Economist Robert W.
Johnson)
Diagnosis: Asbestos-Related Colon Cancer, Asbestosis and Pleural
Disease
Location(s) of Exposure Includes at the Embarcadero Center, San Francisco.
(See Exhibit "G" for Relevant Work History)
Spouse JEAN ROSS
Date of Marriage December 15, 1973 (42 years of marriage)
Economic Damages $403,467.72 (as limited by Statement of Damages)
ROBERT ROSS 's Non- $750,000.00 (as limited by Statement of Damages)
Economic Damages
(Personal Injury)
JEAN ROSS 's Non- Economic —_ $250,000.00 (as limited by Statement of Damages)
Damages
(Loss of Consortium)
SUMMARY OF DOCUMENTARY EVIDENCE
Exhibit Category Detail
A. Medical Report Medical Report of Richard Luros, M.D.
B. Proof of Default, Service of | Request for Default Judgment, Proof of Service
Summons, and Damages and Statement of Damages served upon
Ceiling Defendant.
Cc. Future Medical Damages Declaration of Frank Ganzhorn, MD
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ENTRY OF DEFAULT JUDGMENT
AGAINST DEFENDANT S F L, INC.D. Non-Economic Damages Declaration of Plaintiff ROBERT ROSS

(Personal Injury)
E. Non-Economic Damages Declaration of Plaintiff EAN ROSS
(Loss of Consortium)
F. Non-Economic Damages Declaration of James P. Nevin
G. Work history relevant to Worksite Product identification and summary of

exposure case by Defendant —_ work place exposure

H. Non-Medical Economic Declaration of Economist Robert W. Johnson
Damages
I. Past Medical Billing Medical Billing Statement and Medical Bills

SUMMARY OF PROCEDURAL HISTORY

Title of Operative Complaint
(upon which the Defendant was

Defaulted)

December 5, 2011
April 6, 2012

April 6, 2012

April 6, 2012

April 6, 2012

"Second Amended Complaint"

Filed May 16, 2011.

(See copy of this operative complaint attached to
Declaration of Nancy T. Williams as Exhibit "J".)

Date of Service of Summons, Complaint and Statements
of Damages.

Date Proof of Service filed

Date Request for Entry of Default filed.

Date of Entry of Default
(Per Register of Actions)

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.

Date of Filing of Statements of Damages

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

AGAINST DEFENDANT S F L, INC.June 2, 2016 Date of the next Order to Show Cause Re: Dismissal of
Doe defendants.

The Court has set a hearing for June 2, 2016 on an Order
to Show cause re Dismissal of the entire action.

However, dismissal of "DOE" defendants in this case is
irrelevant to the matter of Default Judgment against
Defendant. Such matters are better handled at the Order
to Show Cause re Dismissal hearing before the Honorable
Garrett L. Wong

Status of Remaining Defendants This action has settled as to all non-defaulted defendants.

in the Case / Will granting of this Prove-up on defaulted defendants remains the only aspect

application would resolve all remaining as to the status of defendants in this action.

remaining claims in the case: The granting of applications for default judgment in this
case would resolve all remaining claims for this case with
the following exception: Plaintiff continues to pursue
claims against bankruptcy-related asbestos trusts for
recovery of damages.

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.) ROBERT ROSS and JEAN ROSS ("Plaintiffs") brought this personal injury and loss
of consortium action seeking recovery from various entities responsible for ROBERT ROSS 's
exposure to asbestos, including defendant (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, defendant 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 Plaintiff's

exposure to asbestos put into Plaintiff's work space by Defendant.

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ENTRY OF DEFAULT JUDGMENT
AGAINST DEFENDANT S F L, INC.Defendant caused asbestos and asbestos containing products to be present at the above
stated jobsites and its 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 defendant's actions and inactions, ROBERT ROSS
became exposed to asbestos dust and fibers.

Plaintiff ROBERT ROSS 's Asbestos-related Injuries and the Damages of ROBERT ROSS and

JEAN ROSS

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
defendant is 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. Defendant 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 judgement is
summarized as follows: ROBERT ROSS 's work history, attached in Exhibit A to the Complaint,
shows exposure to asbestos containing product caused by defendant.

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 defendant
and/or installed and/or disturbed by said defendant as a contractor. Such exposure contributed to
cause plaintiff's asbestos-related disease.

Damages Ceiling Set by Statement of Damages

Attached to the Williams Declaration, is a true and accurate photocopy of the Statements
of Damages served upon defendant 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:

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ENTRY OF DEFAULT JUDGMENT
AGAINST DEFENDANT S F L, INC.As to Plaintiff ROBERT ROSS:

Ceiling for Economic Damages: $1,250,000.00
Ceiling for Non-Economic Damages: $ 750,000.00

As to Plaintiff JEAN ROSS:

Ceiling for Non-Economic Damages: $ 250,000.00
Proof of Economic Damages

Plaintiffs' Statements of Damages were served upon defendant 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 Statement of Damages served upon defendant attached to
Declaration of Nancy T. Williams as Exhibit “B”).

In support of Plaintiffs 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. In the Report of Economist Robert W.
Johnson, he opines that Plaintiff's life expectancy was until 2021, which is 5 years from 2016.
(See Report of Robert W. Johnson attached to the Declaration of Nancy T. Williams as Exhibit
"G".) 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.

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ENTRY OF DEFAULT JUDGMENT
AGAINST DEFENDANT S F L, INC.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
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 Robert W. Johnson attached to the Declaration of Nancy
Williams as Exhibit "H" provides evidence of plaintiffs' 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 plaintiff's damages for past medical expenses.

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 v. 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.

Therefore, attached to the Declaration of Nancy T. Williams as Exhibit "H" is a true and
correct copy of a summary, and the underlying bills, showing the amount charged and the amount
paid. In accordance with the law set forth above, plaintiff hereby seeks to recover the total
amount paid of $13,353.72. The following is a summary of Plaintiff ROBERT ROSS's

Economic Damages and demand:

Economic Damages SOD Limit | Proof Attached | See Exhibit Requested
Medical Expenses to Date $100,000.00 $13,353.72 | Exhibit "I" $13,353.72
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ENTRY OF DEFAULT JUDGMENT
AGAINST DEFENDANT S F L, INC.Future Medical Expenses $100,000.00 $74,500.00 Exhibit "Cc" $74,500.00
an
calculation
above
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 $449,792.72 $403,467.72

Proof 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.

See declaration of plaintiff ROBERT ROSS attached to 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.

See declaration of plaintiff JEAN ROSS attached to 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 damage
verdicts for cases. (See declaration of James P. Nevin attached to Declaration of Nancy T.

Williams as Exhibit “F’).

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

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ENTRY OF DEFAULT JUDGMENT
AGAINST DEFENDANT S F L, INC.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
judgement. (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.)

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,
“Ta] default judgment is an estoppel as to all issues necessarily litigated therein.” (Id. citing

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ENTRY OF DEFAULT JUDGMENT
AGAINST DEFENDANT S F L, INC.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 vy 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
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.)

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ENTRY OF DEFAULT JUDGMENT
AGAINST DEFENDANT S F L, INC.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
“[t]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.) Asa 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

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.)

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ENTRY OF DEFAULT JUDGMENT
AGAINST DEFENDANT S F L, INC.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
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

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ENTRY OF DEFAULT JUDGMENT
AGAINST DEFENDANT S F L, INC.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.” If a 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
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
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ENTRY OF DEFAULT JUDGMENT
AGAINST DEFENDANT S F L, INC.“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 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

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ENTRY OF DEFAULT JUDGMENT
AGAINST DEFENDANT S F L, INC.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 v. 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

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.

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ENTRY OF DEFAULT JUDGMENT
AGAINST DEFENDANT S F L, INC.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 from the unlawful act or omission of another, may recover from the person
in fault a compensation therefor in money, which is called damages. (Cal. Civ. Code § 3281.)

“There is no legal method or yardstick by which the precise value of human pain and
suffering may be determined, nor is there any formula by which personal disfigurement may be
appraised and a certain sum fixed upon as the true resultant damage.” Williams Paving Co. v.
Kreidl (Va. 1958) 200 Va. 196, 204.) “The law does not assume that a particular injury calls for
a definite amount of compensation, for a just compensation may vary widely in different cases,
even where the physical injury is the same, especially where the injury is permanent or where
physical or mental pain and suffering are involved.” (Id., emphasis added.) “Hence the amounts
of respective verdicts for somewhat like physical injuries are by no means controlling or
determinative of whether a verdict under consideration is excessive or not, or inadequate or not.”
(Id.)

At common law, when measuring damages, the general underlying principle “is that
whoever unlawfully injures another shall make him whole.” (Bullerdick v. Pritchard (Colo. 1932
8 P.2d 705, 706; accord Kirk v. Denver Publishing Co. (Colo. 1991) 818 P.2d 262, 265.) This

principle reflects the “venerable American tradition of just compensation for injuries and
damages.” (See H.B. 97-1239 § 1 (1997), reprinted in Historical and Statutory Notes, COLO.
REV. STAT. ANN. § 13-21-102.5 (Elec. Pocket Pt. Update West 2000).)

Under Cal. Code Civ. Proc. § 585(b), the appropriate damages award is that which is

necessary to adequately compensate an injured party. Specifically, the compensation must be

just. (Cal. Code Civ. Proc. § 585(b), emphasis added.) The statute does not provide an exact

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ENTRY OF DEFAULT JUDGMENT
AGAINST DEFENDANT S F L, INC.definition or standard for what constitutes “just” compensation. This is due to the law not
presuming a particular injury calls for a definite amount of compensation. (Williams, 200 Va. at
204.) However, courts have interpreted “just” compensation as compensation for loss of use and
that which will “make the plaintiff whole as of the date of the injury.” (Howard v. American Nat.
Fire Ins. Co. (2010) 187 Cal.App.4th 498, 535; Cal. Prac. Guide Civ. Trials & Ev. Ch. 17-F.)

There is no requirement that a plaintiff prove with certainty the extent of the harm he has
suffered as a result of the defendant’s conduct. (Clement v. State of California (1985) 40 Cal.3d
202, 219.) Although ‘[i]t is desirable...that there be definiteness of proof of the amount of
damage as far as is reasonably possible[,] [i]t is even more desirable...that an injured person not
be deprived of substantial compensation merely because he cannot prove with complete certainty
the extent of harm he has suffered.” (Garcia v. Duro Dyne Corp. (2007) 156 Cal.App.4th 92, 98-
99; Ibid., quoting Res.2d Torts, § 912, com. a, p. 479.)

Compensatory damages are those sufficient in amount to indemnify the injured person for|
the loss suffered. (Black’s Law Dictionary 174 (9" ed. 2009.) As a general rule, evidence of a
defendant’s pecuniary resources is irrelevant and inadmissible in cases where only compensatory
damages are recoverable. (Am. Jur. 2d, Damages § 750.) “Obviously, the questions of liability
and the amount of damages, if any, in the ordinary personal injury case are to be determined
without regard to the defendant’s ability to pay any judgment rendered against him.” (Hoffman v.
Brandt (Cal. 1966) 65 Cal. 2d 549, 554.) “Evidence that the defendant is poor or uninsured
generally has no probative value on these issues and is therefore irrelevant in a negligence
action.” (Id. at 553-54). “[A] civil damage award is rendered without regard to the defendant’s
ability to pay.” (People v. Hodgkin (1987) 194 Cal.App.3d 795, 805.) This is why personal

injury damages “have no ceiling on general damages.” (Fein v. Permanente Medical Group

(1985) 38 Cal.3d 137, 160.)

Upon showing of sufficient evidence, the court “shall render judgment in the plaintiff's
favor for that relief...as appears by the evidence to be just.” (Cal. Code Civ. Proc. § 585(b).)
Ultimate damage allocation among multiple tortfeasors remains solely under the court’s

discretion. (2-3900 CACI 3933.)

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ENTRY OF DEFAULT JUDGMENT
AGAINST DEFENDANT S F L, INC.To the extent this Court believes that “just” damages has anything to do with the
defendant’s ability to pay, that ceiling has already been set by the statement of damages. The
entire purpose of a statement of damages is to put the defendant on notice of the maximum that
they may be required to pay if they fail to answer. Therefore, as long as the damages are in
accord with the evidence provided, and are at or under the ceiling in the statement of damages,
then they are just.

Sufficient evidence of plaintiffs’ injury and damages has been presented against
Defendant, whom have not appeared in this case. The final decision regarding a “just” damage
allocation rests with the court. Moreover, damage awards are rendered without regard to
defendant’s ability to pay. Due to sufficiency of evidence, case law and authority, this court has

discretion to enter a default judgment against the defendant.

CONCLUSION
The operative summons, complaint and Statements of Damages were served on defendant
and defendant has failed to defend or otherwise appear in this action. Plaintiffs have filed proof
of service of summons on defendant as well as a request for entry of default and Statements of
Damages. In accordance with the economic and non-economic damages set forth above, as
shown in the Declaration of the plaintiffs and in the other Exhibits attached to the Declaration of
Nancy T. Williams, and as reduced by the Statements of Damages ceilings where applicable,
plaintiffs request the Court enter default judgment against defendant in amounts as follows:As to
As to Plaintiff ROBERT ROSS:
Economic Damages: $403,467.72
Non-Economic Damages: — $750,000.00
As to Plaintiff JEAN ROSS:
Non-Economic Damages: — $250,000.00
Il
iit
lit
if
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ENTRY OF DEFAULT JUDGMENT
AGAINST DEFENDANT S F L, INC.WHEREFORE, Plaintiffs are entitled to a default judgment against defendant S F L, INC,

and respectfully seeks default judgment against said defendant in the total amount of

$1,403,467.72.
Dated: _March 22, 2016 Respectfully submitted,
BRAYTON#PURCELL LLP
By: /s/ Nancy T. Williams
Nancy T. Williams
Attorneys for Plaintiffs
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ENTRY OF DEFAULT JUDGMENT
AGAINST DEFENDANT S F L, INC.