Motion-Secondary: RUFUS ALEXANDER VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al

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                                Gordon & Rees LLP

101 West Broadway

Suite 2000
San Diego, CA 92101

ROGER M. MANSUKHANI (SBN: 164463)
STEVEN SOBEL (SBN: 177210)

K.C. SWISHER (SBN: 245238)

KURT E. GILABERT (SBN: 178563)
GORDON & REES LLP

101 West Broadway

Suite 2000

San Diego, CA 92101

Phone: (619) 696-6700

Fax: (619) 696-7124

Attorneys for Defendant
HENNESSY INDUSTRIES, INC.

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

MAY 31 2011

Clerk of the Court
BY: JUDITH NUNEZ
Deputy Clerk

SUPERIOR COURT OF CALIFORNIA - COUNTY OF SAN FRANCISCO
CIVIC CENTER COURTHOUSE

RUFUS ALEXANDER,
Plaintiffs,
v5.
ASBESTOS DEFENDANTS (BP) as

Reflected on Exhibits B, C, G, H, I, and DOES
1-8500; and SEE ATTACHED LIST.

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CASE NO. CGC-08-274719

DECLARATION OF K.C. SWISHER IN
SUPPORT OF DEFENDANT
HENNESSY INDUSTRIES, INC.’S
OMNIBUS SUPPLEMENTAL BRIEF
REGARDING [TS SEX UNOPPOSED
MOTIONS PENDING WITH THIS
COURT AND REQUEST FOR
DISMISSAL OF THIS ACTION WITH
PREJUDICE

[Filed and served concurrently with
Hennessy’s Omnibus Brief Regarding Its
Six Unopposed Motions Pending with this
Court and Request for Dismissal of this
Action with Prejudice.]

Hearing Date: June 7, 2011
Time: 1:30 p.m.
Judge: Hon. Harold E. Kahn
Dept.: 220

July 1, 2008
Not Set

Complaint Filed:
Trial Date:

TO THIS HONORABLE COURT AND TO ALL PARTIES AND THEIR
RESPECTIVE ATTORNEYS OF RECORD HEREIN:

Defendant HENNESSY INDUSTRIES, INC. (“Defendant”) hereby respectfully submits

the following declaration in support of its Omnibus Brief Regarding Its Six Pending Motions

with this Court.
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DECLARATION OF K.C. SWISHER IN SUPPORT OF DEFENDANT HENNESSY’S OMNIBUS BRIEFID WA RF Bw W

Gordon & Rees LLP
101 West Broadway
Suite 2000
San Diego, CA 92101

DECLARATION OF K.C. SWISHER

1, K.C. Swisher, hereby declare as follows:

1. lam an attorney duly licensed to practice before the courts of the State of
California. | am an Senior Counsel with the law firm of Gordon & Rees LLP, attomeys of
record for Defendant Hennessy Industries, Inc, (“Hennessy”). I am responsible for the day-to-
day handling of this matter on behalf of my firm. The facts stated herein are true of my own
personal knowledge. If called as a witness, I could and would competently testify to the same.

2. Attached hereto as Exhibit “A” is a true and correct copy of this court’s order of
March 22, 2011 regarding Plaintiff's obligation to comply with Court orders by March 31, 2011
and continuing the hearing on all of Hennessy’s pending motions to June 7, 2011.

3. Despite this Court’s clear and express orders to take “affirmative steps” to
respond to discovery, including providing discovery responses, submitting to deposition and
retaining counsel by May 31, 2011, none of these things have occurred as of the date of this
declaration (June 1, 2011). Indeed, in violation of this Court’s orders, Plaintiff has failed to take
a single step to move this case forward and comply with his discovery obligations. Specifically:

a. Plaintiff has failed to provide responses to Hennessy’s Requests for
Admissions, Requests for Production and Form Interrogatories;
b. Plaintiff has failed to make himself available for deposition;
c. Plaintiff has failed to retain counsel;
d. Plaintiff has failed to oppose Hennessy’s Motion for Judgment on the
Pleadings;
e Plaintiff has failed to oppose Hennessy’s Motion for Terminating
Sanctions; and
f. Plaintiff has failed to oppose Hennessy’s Motion to Dismiss for Delay in
Prosecution.
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DECLARATION OF K.C. SWISHER IN SUPPORT OF DEFENDANT HENNESSY’S OMNIBUS BRIEF=~

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4. Due to these violations and the impeding, unopposed Motions set for hearing on
June 7, 2011, it is hereby requested that this Court dismiss Plaintiff’s claims with prejudice.
I declare under penalty of perjury under the laws of the State of California that all of the

above is true and correct.

Executed May 31, 2011, at San Diego, California. ‘
K.C. SWISHER
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DECLARATION OF K.C. SWISHER IN SUPPORT OF DEFENDANT HENNESSY’S OMNIBUS BRIEFEXHIBIT Aom YW OD HB Ww ON

0196 BRITE PUEDEO

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ASUS F AVIA

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Laura Przetak, Esq. CSB No. 118301

BERRY & BERR’ ENDORSED

A Professional Corporation. F ea ED

2930 Lakeshore Avenue Sen Francisco County Suoerior Court

Oakland, CA 94610

Telephone: 510) 250-0200 MAR 2 3 2011
facsimile: =

E-mail; la berryandberry.com a CEFR oF f

Designated Defense Counsel

SUPERIOR COURT — UNLIMITED JURISDICTION — STATE OF CALIFORNIA
CITY AND COUNTY SAN FRANCISCO

RUFUS ALEXANDER, NO. CGC-08-274719 pavide
Plaintiffs), PROPOSED] ORDER ee, ROTOWS tH
4 ane MAN Agena
* covfevenlce
PNEUMO ABEX LLC, et al.
Defendant(s). )

A Case Management Conference was held on March 9, 2011 at 1:30 Pan. before the
Honorable Harold E. Kabn. Counsel for defendants appeared in court in Department 220.
Plaintiff Rufus Alexander appeared by phone, stating he had been scheduled for surgery that day,
and asking that the Case Management Conference and Defendants’ motions be continued.

IT 1S HEREBY ORDERED: Plaintiff is to take affirmative steps to actively respond to
discovery requests, including submitting to a deposition and retaining counsel, by May 31, 2011.
‘The Case Management Conference and ali motions filed by defendants are continued to June 7,
2011 at 1:30 p.m. in Department 220. The court intends to dismiss this action at that time unless

plaintiff has fulfilled his discovery obligations.

DATED:

HAR 2 8 2011 HAROLD KAHN

‘The Honorable Harold E.-Kahn.
Judge of the Superior Court, gv

ABbeopesed}-Oreler
Rufus Alexander v. Puewmo Abec LLC, et al,
San Francisco Superior Court No, CGC-08-274719
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