Since Summer 2007, the San Francisco Superior Court had been consolidating hundreds of asbestos personal injury and wrongful death cases, without notice and without formal hearing.
In December 2007, BHP challenged the court's attempt to consolidate 120 cases on due process grounds.
The trial court overruled the objections and BHP filed a petition for a writ.
The First District Court of Appeal accepted the petition and ordered briefing by the parties.
In a highly unusual move, the trial court retained its own counsel to advise the Court of Appeal to explain that it would vacate the challenged consolidation orders.
On May 14, 2008, the trial court did just that, dissolving the consolidations of not only the cases that had been challenged by BHP in December, but of all of the sua sponte consolidations orders it had issued going back to August 2007.
Date: 22 May 2008
San Francisco Trial Judge Vacates His Own Consolidation Order
SAN FRANCISCO - A California Superior Court for San Francisco County trial court judge has
entered an order vacating a previous sua sponte order in which the judge had consolidated a number
of asbestos cases for trial. In re: Brayton Group 436 v. Asbestos Defendants, No. 424859 (Calif.
Super. Ct., San Francisco Cty.).
In a May 14 order, Judge James Robertson II said that "no case within any such [Brayton Purcell]
group shall be considered part of a Code of Civil Procedure section 1048(a) consolidation, unless a
noticed motion is filed, a hearing conducted, and an order issued."
According to Edward Hugo and James Parker of Brydon, Hugo & Parker, counsel for asbestos
Foster Wheeler, Judge Robertson issued the original sua sponte order in August 2007, consolidating
asbestos cases filed by the Brayton Purcell law firm.
However, the defense counsel challenged the sua sponte order, contending that if the consolidation
was allowed to stand, the cases would be tried without commonality, which the counsel argued was
prejudicial to all defendants.
As such, the defense counsel filed a writ, asking the California First District Court of Appeal to
reverse Judge Robertson’s consolidation order.
Before the First District Court of Appeal ruled on the matter, however, Judge Robertson filed the
instant motion to vacate its sua sponte order consolidating the cases.
Brydon, Hugo & Parker is located in San Francisco.
Brayton Purcell is located in Novato, Calif.
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