Motion-Secondary: ANTHONY CONTE VS. ASBESTOS DEFENDANTS B*P AS REFLECTED ON REFLECTED et al

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                                Gerdon & Rees LLP
101 West Broadway, Suite 2000

San Diego, CA 92101

STEVEN SOBEL (SBN: 177210)
ssobel@gordonrees.com

LORRIE A. CANTRELL (SBN: 272637)
leantrell@gordonrees.com

GORDON & REES LLP

101 W. Broadway, Suite 2000

San Diego, CA 92101

Telephone: (619) 696-6700

Facsimile: (619) 696-7124

Attorneys for Defendant
HENNESSY INDUSTRIES, INC.

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

NOV 12 2013

Clerk of the Court
BY: WILLIAM TRUPEK
Deputy Clerk

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN FRANCISCO

ANTHONY CONTE,
Plaintiff,
vs.

ASBESTOS DEFENDANTS (BP) As
Reflected on Exhibits B, B-1, C, F, G; and

DOES 1-8500; and SEE ATTACHED LIST.

Defendants.

Ne ee eee

CASE NO. CGC-09-275046
Complaint filed: 01/30/09

MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF EX
PARTE APPLICATION OF
DEFENDANT HENNESSY
INDUSTRIES, INC., TO SPECIALLY
SET A MOTION FOR SUMMARY
JUDGMENT

Filed and Served Concurrently:
1. Ex Parte Application
2. Memorandum of Points and
Authorities
3. Declaration of Lorrie A. Cantrell
4. [Proposed] Order

Date: November 13, 2013
Time: 11:00 a.m.

Judge: Hon. Teri Jackson
Dept: 503

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION OF
HENNESSY INDUSTRIES. INC.. TO SPECIALLY SET A MOTION FOR SUMMARY JUDGMENTGerdon & Rees LLP
101 West Broadway, Suite 2000

San Diego, CA 92101

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION & STATEMENT OF FACTS

The above-captioned matter is one of a series of disputed asbestosis cases against
Defendant Hennessy Industries, Inc., which was remanded to this instant Court from the Court of
Appeals by joint motion of the parties.!

Given the currently set trial date of March 3, 2013, Hennessy’s last day to file and serve a
motion for summary judgment in fen cases is November 15, 2013. [Cantrell Decl. { 3.] The
sheer volume of cases against Hennessy, all set for trial on the same day, create an undue burden
on Hennessy to prepare, draft, file and serve all the numerous motions for summary judgment.
[Cantrell Decl. 4 4.] Additionally, the parties’ continued efforts to work together and with the
Court to achieve a desirable and speedy global resolution to these matters necessitate additional
time to explore settlement options. [Cantrell Decl. § 4.] Lastly, specially setting Hennessy’s
motion for summary judgment hearing would not prejudice either party, as none of the cases at
issue are preference cases, and this court’s already overloaded docket and delayed trial call
would make it unlikely that the cases at issue will proceed to trial on the currently set date.
[Cantrell Decl. € 4.]

Accordingly, the hearing of Hennessy’s motion for summary judgment should be
specially set in order to protect Hennessy’s statutory right to move for summary judgment. (See
Code Civ. Proc., § 437¢; Polibrid Coatings, Inc. v. Superior Court (2003) 112 Cal App.4th 920,
923.) Furthermore, specially setting Hennessy’s motion for summary judgment will obviate any
need for a trial continuance in this matter, [Cantrell Decl. 4 5.]

There is good cause to grant this ex parte application. If this application is not granted,

Hennessy will not have an opportunity to move for summary judgment before trial, robbing

‘This instant ex parte application is being filed separately, and seeking identical relief, on behalf of the following
Brayton Purcell remanded cases: Anthony Conte vs. Asbestos Defendants, et al., Case No.: CGC-09-275046; Clem
Fitzhugh vs. Asbestos Defendants, et al..Case No.. CGC-08-274645; Phillip Foster vs. Asbestos Defendants, ei al.,
Case No.: CGC-08-274866; Milton Godbee vs. Asbestos Defendants, et al., Case No,: CGC-09-275 142; Donald
Pearson vs, Asbestos Defendants, et al., Case No... CGC-08-274975; Edward Santa vs. Asbestos Defendants, et al.,
Case No.: CGC-09-275314; Edward Schlimmer vs. Asbestos Defendanis, et al., Case No... CGC-09-275231;
William Bettencourt vs. Asbestos Defendants, et al., Case No... CGC-06-454966; lim Parrish vs. Asbestos
Defendants, et al., Case No... CGC-07-274209; Joseph Rieser vs. Asbestos Defendants, et al., Case No.: 11-275794

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION OF
HENNESSY INDUSTRIES. INC.. TO SPECIALLY SET A MOTION FOR SUMMARY JUDGMENTGerdon & Rees LLP
101 West Broadway, Suite 2000

San Diego, CA 92101

Hennessy of its statutory right to move for summary judgment. [Cantrell Decl. § 6.] Further, if|
Hennessy is not able to move for summary judgment, it will be forced to proceed to trial on
meritless claims. [Cantrell Decl. § 6.] “[A] potential trial on nonactionable claims” is
considered irreparable harm. (See Jeld-Wen, Inc. v. Superior Court (Keener) (2005) 131
Cal. App.4th 853, 860.) If this application is not granted, Hennessy will suffer irreparable harm.
If Hennessy had to bring a noticed motion for the relief sought, it would be heard even closer to
trial, compounding the problem. [Cantrell Decl. § 7.]
Therefore, this Court should specially set Hennessy’s motion for summary judgment.

I. ARGUMENT

A. This Court Should Specially Set Hennessy’s Motion for Summary Judgment,

Parties to litigation have a statutory right to move for summary judgment. (See Code
Civ. Proc., § 437c; Polibrid Coatings, Inc. v. Superior Court (SSC Const., Inc.) (2003) 112
Cal_App.4th 920, 923.) “[A] potential trial on nonactionable claims” is considered irreparable
harm. (See Jeld-Wen, Inc. v. Superior Court (Keener) (2005) 131 Cal.App.4th 853, 860.) This
Court has the inherent authority to control its own docket. (See Walker v. Superior Court
(Residential Constr. Enters.) (1991) 53 Cal.3d 257, 267.) Additionally, this Court has the
authority to set the hearing of a motion for summary judgment within the thirty days before trial
“for good cause.” (Code Civ. Proc., 437¢, subd, (a).)

Such good cause exists in this instant case. This Court scheduled ten cases against
Hennessy for trial on the same day, thus making the motion for summary judgment deadline all
falling on the same day [see fn.1; Cantrell Decl.{| 3, 4.]. The burden of preparing, drafting, filing
and serving these complex and voluminous documents create an undue prejudice on Hennessy.
[Cantrell Decl. ¢4.] Furthermore, Hennessy is in the later stages of exploring a global settlement
with Plaintiffs in all cases at issue, which would be further hindered if Hennessy were to be
required to file and serve ten separate motions for summary judgment on the same day. [Cantrell
Decl. § 4.] Finally, the Court’s current docket conditions are such that it is very unlikely that the
cases at issue will proceed to trial on their currently scheduled date, thus negating any prejudice

fil

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION OF

HENNESSY INDUSTRIES. INC.. TO SPECIALLY SET A MOTION FOR SUMMARY JUDGMENTGerdon & Rees LLP
101 West Broadway, Suite 2000

San Diego, CA 92101

to the parties for a closer hearing date. [Cantrell Decl.  4.] Therefore, this Court should set the

hearing of Hennessy’s motion for summary judgment on a date before the trial date,

B. Trial Is Not an Adequate Substitute for Hennessy’s Statutory Right to Move
for Summary Judgment

“The purpose of the law of summary judgment is to provide courts with a mechanism to
cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is
in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th
826, 843 (dguilar).) Summary judgment “provides a particularly suitable means to test the
sufficiency of the plaintiffs prima facie case....° (Caldwell v. Paramount Unified School Dist.
(1995) 41 Cal.App.4th 189, 203.)

The summary judgment procedure exists to resolve cases when trial is not necessary in
the first place. (Aguilar, 25 Cal.4th at 843.) It allows litigants to dispose of cases based on
undisputed facts without having to incur the great expense of trial by jury. (See Madden v.
Kaiser Foundation Hospitals (1976) 17 Cal.3d 699, 711 [noting the “expense and delay of a jury
trial”].) A party can never obtain the same relief at trial that they can through summary
judgment, due to the greatly increased expense involved in a trial.

Furthermore, when a case that could have been resolved by summary judgment goes to
trial, it wastes precious judicial resources. (See Norgart v. Upjohn Co. (1999) 21 Cal 4th 383,
467 [explaining that it is “wasteful of court time” to have an unnecessary trial].) A judge must
take an extended period of time to try a case that could have been resolved at a motion hearing,
and a jury of citizens must sacrifice their time during the course of an unnecessary trial. These
are resources that could otherwise be employed on cases that actually involve disputed facts.

Trial is never adequate substitute for summary judgment, and never provides the same
relief. (See Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 823, 838 [explaining that
summary judgment is no longer considered a “disfavored” procedure].) Therefore, this Court
should specially set Hennessy’s motion for summary judgment, so that Hennessy is not robbed
of its right to move for summary judgment.
iit

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION OF
HENNESSY INDUSTRIES. INC.. TO SPECIALLY SET A MOTION FOR SUMMARY JUDGMENTGerdon & Rees LLP
101 West Broadway, Suite 2000
San Diego, CA 92101

HAS6OSAINTASOIDI vt

Cc Hennessy Attempted to Meet and Confer Prior to Bringing the Instant
Application

This application is not being brought to harass any other party or counsel, nor cause
undue delay in these proceedings. [Cantrell Decl. { 8.] Defendant attempted to reach out to
Plaintiffs counsel prior to filing this instant application in an attempt to enter into a joint
stipulation to specially set Hennessy’s motion for summary judgment hearing. [Cantrell Decl. ]
8; Exh. A.] However, Plaintiffs’ counsel did not agree to the stipulation, thus necessitating the
filing of the instant application.

Ill. CONCLUSION

This Court should permit Hennessy to have a motion for summary judgment heard before

the trial date in this matter. Hennessy requests a motion hearing date for the Friday before the

currently set Monday trial call, or a date convenient for the Court.

Dated: November 12, 2013 GORDON & REES LLP

By:
Su A.
Lorrie Cantrell
Attorneys for Defendant
HENNESSY INDUSTRIES, INC.

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION OF
HENNESSY INDUSTRIES. INC.. TO SPECIALLY SET A MOTION FOR SUMMARY JUDGMENT