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  • PAUL VAN DEGRIFT VS. ASBESTOS DEFENDANTS (BP) AS REFLECTED ON EXHIBITS et al ASBESTOS document preview
  • PAUL VAN DEGRIFT VS. ASBESTOS DEFENDANTS (BP) AS REFLECTED ON EXHIBITS et al ASBESTOS document preview
  • PAUL VAN DEGRIFT VS. ASBESTOS DEFENDANTS (BP) AS REFLECTED ON EXHIBITS et al ASBESTOS document preview
  • PAUL VAN DEGRIFT VS. ASBESTOS DEFENDANTS (BP) AS REFLECTED ON EXHIBITS et al ASBESTOS document preview
  • PAUL VAN DEGRIFT VS. ASBESTOS DEFENDANTS (BP) AS REFLECTED ON EXHIBITS et al ASBESTOS document preview
  • PAUL VAN DEGRIFT VS. ASBESTOS DEFENDANTS (BP) AS REFLECTED ON EXHIBITS et al ASBESTOS document preview 
						
                                
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                                BRAYTON®PURCELL LLP

ATTORNEYS AT LAW
22 RUSH LANDING ROAD

PO BOX 6169
NOVATO, CALIFORNIA 94948-6169

GIS) 898-1555

—

So uv eH DH BR HN

DAVID R. DONADIO, ESQ., S.B. #154436

| NANCY T. WILLIAMS, ESQ., S.B. #201095

BRAYTON%*PURCELL LLP
Attomeys at Law

222 Rush Landing Road

P.O. Box 6169

Novato, California 94948-6169
(415) 898-1555

Attorneys for Plaintiff

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

DEC 09 2009

GORDON PARK-LI, Clerk

BY: JUDITH NUNEZ
Deputy Clerk

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

PAUL VAN DEGRIFT, }
Plaintiff,

ASBESTOS DEFENDANTS (BP)

L

ASBESTOS
No. 275076

MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF EX
PARTE APPLICATION FOR ORDER
GRANTING LEAVE TO FILE FIRST
AMENDMENT TO THE COMPLAINT TO
SUBSTITUTE DEFENDANTS’ TRUE
NAME FOR DOE

[C.C.P. § 473]

Date: December10, 2009

Time: 11:00 a.m.

Dept.: 302, Hon. Charlotte Woolard
Trial Date: N/A

Filing Date: February 19, 2009

STATEMENT OF FACTS
Plaintiff, PAUL VAN DEGRIFT, filed this asbestos personal injury action on

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February 19, 2009, claiming injuries and damages as a result of his asbestos-related lung disease. |'

After further discovery and investigation, it was revealed there are additional entities who may

26 | share liability for plaintiff ’s asbestos-related disease. Therefore, the five new defendants who

27] manufactured, distributed, supplied and/or installed asbestos-containing products to plaintiff,
PAUL VAN DEGRIFT’s employers/jobsites, have been added to the First Amendment to

28|

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR ORDER GRANTING LEAVE TO

FILE FIRST AMENDMENT TO THE COMPLAINT TO SUBSTITUTE DEFENDANTS’ TRUE NAME FOR DOECo OM DNA mW FF WY

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summary complaint (ARMSTRONG INTERNATIONAL, INC.; DURABLA

MANUFACTURING COMPANY, INC.; THE GOODYEAR TIRE & RUBBER COMPANY;

GOULDS PUMPS, INC.; and JERVIS B. WEBB COMPANY).

Allowing the filing of the First Amendment to Complaint is in the furtherance of justice
so that plaintiff may properly present his case. Since there is no trial date assigned in this case,
new defendants will have ample time to complete pre-trial. :

U.
LEGAL DISCUSSION
Code of Civil Procedure section 473, provides in pertinent part:
The court may, in furtherance of justice, and on any terms as may
be proper, allow a party to amend any pleading or proceeding...
The court may likewise in its discretion, after notice to the
adverseparty, allow on any terms as may be just, an amendment to
any pleading or proceeding in other particulars... .

California courts have uniformly permitted parties great liberality in amending pleadings.

“[I]t can very rarely happen that a court will be justified in refusing a party leave to amend his

pleading so that he may properly present his case." Seamans v, Standard Hotel Corporations

(1947) 78 Cal.App.2d 818, 826. Underscoring this policy of liberality in amending pleadings is
the fact that mandamus is available for review of the trial court's denial of leave to amend a
pleading, but not for permitting such leave, and that appellate courts commonly reverse trial
court's denial of leave to amend. 8 Witkin California Procedure (3d Ed. 1985) "Pleading,"
§§ 1123, 1124, pp. 540-541.

Moreover, the statute of limitations under C.C.P. § 340.2 has not run for the adding of
new parties or the filing of new claims against any party.

it is appropriate to grant the requested relief via ex parte application.

>) JInmost courts, leave to amend to substitute a defendant’s true name
or “Doe” is routinely granted without notice or hearing of any kind. The

application for leave to amend is simply presented to a judge or
commissioner for signature.

IL. Brown & R. Weil, California Practice Guide: Civil Procedure Before Trial (The Rutter Group
2009), Section 6:614.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR ORDER GRANTING LEAVE TO
FILE FIRST AMENDMENT TO THE COMPLAINT TO SUBSTITUTE DEFENDANTS® TRUE NAME FOR DOEno

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Plaintiff is not presenting any new allegations to the complaint, but are merely
substituting a previously unknown defendant for a “Doe.” Thus, the amendment should be
allowed in the furtherance of justice so that plaintiff may properly present his case. (See
Seamans, 78 Cal.App.2d at 826.)

CONCLUSION

In view of the foregoing, plaintiff respectfully requests the Ex Parte Application for Order
Granting Leave to File a First Amendment to Substitute Defendants’ true name for “Doe” be
granted.

Respectfully submitted,

Dated: LE-G OF BRAYTON*PUR!

LLP

By:

tf
mey T- Willams
Attorneys for Plaintiff

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR ORDER GRANTING LEAVE TO
FILE FIRST AMENDMENT TO THE COMPLAINT TO SUBSTITUTE DEFENDANTS’ TRUE NAME FOR DOE