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RAYMOND L. GILL (SBN 153529)
BRENDAN J, TUQHY (SBN 233253)
KIRKPATRICK & LOCKHART
PRESTON GATES ELLIS Lup
55 Second Street, Suite 1700
San Francisco, CA 94105
Telephone: 415.882.8200
Facsimile: 415.882.8220
Attomeys for Defendant CRANE CO.
ELECTRONICALL
FILED
i
Superior Court of
County of San Francisc
MAR 29 2007 |
GORDON PARK-LI, Clerk
BY: RAYMOND K. WON
Deputy Clerk
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
NANCY MARIE SCOTT, et al.,
Plaintiffs,
V5,
AC AND §, INC., et al.
Defendants.
MEMORANDUM OF POINTS and AUTHORITIES IN SUPPORT OF DEFENDANT CRANE CO.'S MOTION FOR
ASBESTOS RELATED CASE
Case No. 443236
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
DEFENDANT CRANE CO.'S MOTION
FOR SUMMARY JUDGMENT OR, IN
THE ALTERNATIVE, SUMMARY
ADJUDICATION
Date: June 15, 2007
Time: 9:30 a.m.
Dept.: 302
Judge: Hon. Patrick Mahoney
Trial Date: July 16, 2007
Complaint Filed: July 20, 2005
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
£
i
|
|I.
Tv.
A. The Parties...
B, Discovery...
A. Legal Standard for Summary Judgment.
TABLE OF CONTENTS
Page(s)
INTRODUCTION
FACTUAL BACKGROUND
LEGAL ARGUMENT ..
B. Summary Judgment Should Be Granted Because Plaintiff Cannot Prove Exposure to a
A.
Crane Co. Product That Contained Asbestos.
1. Summary Judgment Should Be Granted Because Plaintiffs Cannot Prove
That Crane Co, Manufactured or Supplied any Product Alleged to be
Defective
2. ‘Summary Judgment Should Be Granted Because Plaintiff Cannot Prove
That Any Crane Co, Product Contained Asbestos.
3. Summary Judgment Should Be Granted Because Plaintiff Cannot Prove
That Respirable Asbestos Fibers were Released from a Crane Co. Product .... 7
Summary Adjudication
CONCLUSION,
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CRANE CO.'S MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONTABLE OF AUTHORITIES
CASES
Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826..
Andrews v. Foster Wheeler, LLC (2006) 138 Cal. App. 4th 96.
Andrews v. Foster Wheeler, LLC, supra, 138 Cal. App. 4th 96 ...
Chavers y. Gatke Corp. (2003) 107 Cal. App. 4th 606..
Dumin y Oweas-Corning Fiberglas Corp. (1994) 28 Cal. App. 4th 650 ...
Garcia v. Joseph Vince Company (1978) 84 Cal. App. 34 868
Grahn v. Tosco Corp. (1997) 58 Cal. App. 4th 1373...
Hobart v. Hobart Estate Co. (1945) 26 Cal. 2d 412...
Hooker v. Dep't of Transp. (2002) 27 Cal. 4th 198....
Hunter v. Pacific Mechanical Corp., supra, 37 Cal. App. 4th 1282 ...
Kurrack v. American Dist. Tele. Co. (1993) 252 Ill. App. 3d 885...
Lee v. Electric Motor Division (1985) 169 Cal. App. 3d 375...
Lilienthal & Fowler v. Superior Court (1993) 12 Cal. App. 4th 1848 ..
MeGonnell, 98 Cal. App. 4th at 1103 (citations omitted).
Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal. 4th 953 ..
Sindell v. Abbott Laboratories (1980) 26 Cal. 3d 588...
Smith v. ACandS, Inc. (1994) 31 Cal. App. 4th 77
Summers v. Tice (1948) 33 Cal, 2d 80
Weber ¥. John Crane, Inc. (2006) 143 Cal. App. 4th 1433 ..
Weber v. John Crane, Inc., supra, 143 Cal. App. 4th 1433......
‘MEMORANDUM OF POINTS AND AUTHORITIAS IN SUPPORT OF DEFENDANT CRANE COS MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONaa wR ww
STATUTES
Code of Civil Procedure § 4370(f)(1)
Code of Civil Procedure § 1709.
Code of Civil Procedure § 437¢
Code of Civil Procedure § 437e(p)(2)..
Code of Civil Procedure § 3294(a)...
iv
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CRANE CO'S MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONL INTRODUCTION
Plaintiffs Nancy Scott, Joanne Wolfarth, Michael Scott, Robert Scott, Thomas Scott, and
Mary Sobolik (“Plaintiffs”) allege that the decedent, Denzil Scott (“Decedent”), suffered from lung
cancer as a result of exposure to asbestos-containing products manufactured or supplied by various
defendants, including Crane Co. However, through discovery, the Plaintiffs have not identified a
single asbestos-containing product that Crane Co. is alleged to have manufactured, supplied or
controiled, Moreover, in their written discovery responses, Plaintiffs could not point to any relevant
facts, witnesses or documents to demonstrate that the Deccdent was ever exposed to asbestos-
containing products manufactured or supplied by Crane Co. Therefore, summary judgment should be
granted.
I FACTUAL BACKGROUND
A. The Parties
Decedent Denzil Scott served as Seaman in the United State Navy from 1940 to 1960 and
then spent his civilian career as an electrician and instrument technician. (UME No, 1.) Crane Co. is
alleged in this action to have manufactured and supplied asbestos-containing products which have
caused, in part, Decedent's injuries, (UMF No. 2.)
B. Discovery
Crane Co. propounded comprehensive case-specilic discovery seeking detailed information
about all of the facts, witnesses and documents upon which Plaintiffs intend to rely to prove their
claims against Crane Co.’ (UMF No. 3.) Thereafter, Plaintiffs respond to each and every
inferrogatory with boilerplate objections and the phrase “Plaintiffs reserve the right to supplement or
amend this response as discovery and investigation continue.” (UMF No. 4.) The responses make no
specific mention of Crane Co. or any work the Decedent may have done to or around a Crane Co,
product. (UMF No. 5.) Simply put, Plaintiff's responses provide no details about a Crane Co.
product the Decedent may have been exposed, such as the type of Crane Co. product the Plaintifis
claim exposure, how the Decedent was exposed to asbestos from these products or the frequency that
' In Crane Co.'s specially prepared interrogatories to the Plaintiffs, Crane Co, is defined to include itself individually and
forall entities Plaintiffs claim Crane Co. is the successor-in-inerest. (UMF No. 3.)
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CRANE CO,'S MOTION
FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONthe Decedent encountered a Crane Co. product. (UMF No. 6.) Plaintiffs have failed to amend or
provide any supplemental responses to Crane’s written discovery. (UMF No. 7.)
In Crane Co.’s interrogatories, Plaintiffs were asked to identify all persons with knowledge
supporting their claims against Crane Co., and to explain how such knowledge supported those
claims. (UMF No. 8.) In response the Plaintiffs provided no individuals and only included the
statement “Plaintiffs reserve the right to supplement or amend this response as discovery and
investigation continue.” (UMF No. 9.)
Plaintiffs were also asked to identify and produce all documents supporting their claims
against Crane Co. (UMF No. 10.) In response, the Plaintiffs did not identify any documents and
only included the statement “Plaintiffs reserve the right to supplement or amend this response as
discovery and investigation continue,” (UMF No. 11.)
Plaintiffs also responded to Crane Co.’s Requests for Admissions and Form Interrogatories,
without providing any additional information. (UMF No. 12.) Additionally, Plaintiffs’ responses to
standard asbestos case interrogatorics, set one and set two, fail to provide any evidence that the
decedent ever worked with or around a Crane Co. product. (UMF No. 13.)
Plaintiffs Nancy Scott, Joanne Wolfarth, Michael Scott, Robert Scott, Thomas Scott, and
Mary Sobolik were deposed in this action. (UMF No. 14.) Plaintiffs Michael Scott, Robert Scott and
Thomas Scott were not familiar with the name Crane Co. and had no information that the decedent
ever worked with or around a Crane valve. (UMF No. 15.) During their depositions, Nancy Scott,
Joanne Wolfarth and Mary Sobolik did not present any information that the decedent ever worked
‘with or around a Crane Co. product or that the decedent was exposed to asbestos from a product
which Crane Co. is liable. (UMF No. 16.) Additionally, Denzil Scott, the decedent, was never
deposed in this action and no testimony directly from the decedent has been produced in this matter.
(UME No. 17.)
2
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CRANE CO’S MOTION
FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONBee
Ti. LEGAL ARGUMENT
A Legal Standard 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. See Aguilar v. Atlantic Richfield Co, (2001) 25 Cal.4th 826, 843.
‘A motion for summary judgment must be granted if all of the papers submitted show “there is
no triable issue as to any material fact and . . . the moving party is entitled to a judgment as a matter
of law. In determining whether the papers show that there is no triable issue as to any material fact
the court shal! consider all of the evidence set forth in the papers and ail inferences reasonably
deducible from the evidence.” CODE OF CIV. PRO., § 437c, subd. (c). The defendant’s initial burden of
production is to make a prima facie showing of the nonexistence of any triable issue of material fact.
Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. “A prima facie showing is one that is
sufficient to support the position of the party in question. No more is called for.” Id. at 851
(emphasis added.) This burden of production can be satisfied by demonstrating that the plaintiff does
not possess and cannot reasonably obtain evidence to support one or more elements of the plaintiff's
causes of action. McGonnell v. Kaiser Gypsum Company, Inc., (2002) 98 Cal.App.4th 1098, 1103-
1104,
Two 2006 Court of Appeal decisions have confirmed that a moving defendant need not
support its motion with affirmative evidence. Andrews v. Foster Wheeler, LLC (2006) 138 Cal. App.
4th 96; Weber v. John Crane, Inc. (2006) 143 Cal.App.4" 1433. In Weber, the court has refused to
define the minimum evidence a defendant must present in support of its motion to shift the burden,
but it pointed to Andrews and McGonnell as examples of how a motion could be supported either
through factually vague responses to comprehensive discovery or through a plaintiff's own deposition
testimony.
In this action, a reasonable inference to be drawn from Plaintiffs’ discovery responses is that
the Plaintiffs possess no evidence that the Decedent was ever exposed to a Crane Co. product. The
procedural facts set forth by defendant Foster Wheeler in Andrews are instructive. Foster Wheeler
established that it had served specially prepared interrogatories which sought all facts, witnesses and
3
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CRANE COS MOTION
FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONCm ae
documents to support their claims against it. Likewise, Foster Wheeler asked plaintifis to identify
cach person having knowledge of the facts and also to identify the facts known regarding asbestos
exposure. In sesponse, the plaintiffs provided what the court described as a laundry list of people and
documents without any olarification of the facts known by those witnesses or established by the
documents. By way of example, the Weber court explained: “Under those circumstances, by failing
to provide any information of known facts, the plaintiffs in effect stated they had no specific facts
supporting their claim against the defendant.” Weber v. John Crane, Inc., supra, 143 Cal.App.4"
1433. The Andrews court concluded: “If plaintiffs respond to comprehensive interrogatories secking
all known facts with boilerplate answers that restate their allegations, or simply provide laundry lists
of people and/or documents, the burden of production will almost certainly be shifted to them once
defendants move for summary judgment and properly present plaintiffs’ factually devoid discovery
responses.” Andrews v. Foster Wheeler, LLC, supra, 138 Cal. App. 4th 96, 107.
Here, Crane Co. has propounded an “all facts” interrogatory similar to Foster Wheeler's.
(UMF No. 3.) Additionally, several of Crane Co.’s special interrogatories ask plaintiffs to identify
each person with knowledge of the Decedent's exposure to Crane Co, products and how their
knowledge supports their claims against Crane Co. (UMF No. 8.) Plaintiffs did not identify a single
witness. (UMF Nos. 9.) Likewise, Crane Co. propounded specific interrogatories that asked Plaintiff|
to identify the specific documents which he contends support his claim and specific interrogatories
which seek the facts which could possibly relate to the elements of the claims against Crane Co.
(UMF No. 10.) The Plaintiffs failed to identify a single document that supports their claims against
Crane Co. (UMF No. 11.) The Plaintifis failure to identify any witnesses or documents against
Crane Co. is the type of evidence a defendant can point to shift the burden of production on a motion
for summary judgment.
Based upon these discovery responses, it is clear that the Plaintiff have no evidence that
support their claims against Crane Co. Accordingly, Crane Co, has satisfied the burden of production
and Plaintiffs now bear the burden of setting forth specific facts showing that a triable issue of
4
‘MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CRANE CO.S MOTION
FOR SUMMARY JUDGMENT OR, IN'THE ALTERNATIVE, SUMMARY ADJUDICATION‘material fact exists as one or more causes of action or claim for damages. CODE OF CIV. PRO.
§4370(p)(2). Absent such evidence, summary judgment must be granted.
B. Summary Judgment Should Be Granted Because Plaintiff Cannot Prove Exposure to a
Crane Co. Product That Contained Asbestos
This is a wrongful death action brought on various theories of products liability, including
negligence, strict liability, and false representation. Essential elements common to each of these
theories are (1) the defendant manufactured or supplied a product; (2) the product was defective; and
(3) the defect proximately caused the injury. See Lee v. Electric Motor Division (1985) 169
Cal. App.3d 375, 383;7 Hunter v, Pacific Mechanical Corp., supra, 37 Cal.App-4th 1282, 1289. A
threshold issue in asbestos litigation is exposure to the defendant's asbestos-containing product. See,
e.g, Rutherford v. Owens-Illinois, Inc, (1997) 16 Cal.4th 953, 975-76. Plaintiffs have no evidence
and cannot reasonably obtain evidence to support the required elements that Crane Co. manufactured
or supplied a defective (for purposes of this motion, asbestos-containing) product, or that Mr. Scott
was exposed to any asbestos from any product actually manufactured or supplied by Crane Co.
1. Summary Judgment Should Be Granted Because Plaintiffs Cannot Prove That
Crane Co. Manufactured or Supplied any Product Alleged to be Defective
At trial, plaintiffs bear the burden of proving that the Decedent was exposed to Crane Co.'s
asbestos-containing product: “[a] threshold issue in asbestos litigation is exposure to the defendant's
product, ...Ifthere has been no exposure, there is no causation.” MeGonnell, 98 Cal.App.4™ at 1103
(citations omitted). In an asbestos case, the “plaintiff rightfully bears the burden of proving exposure
to a particular defendant's [asbestos] product.” Lineaweaver v Plant Insulation Co. (1995) 31
Cal App.4" 1409, 1415; see also, Dumin v Owens-Corning Fiberglas Corp. (1994) 28 Cal.App.4*
650, 658; Smith v. ACandS, Inc. (1994) 31 Cal.App.4"" 77, 89. Regardless of the theory upon which
liability is predicated, to hold a defendant liable for injury caused by a particular product, there must
2 The causes of action disposed of in Lee included negligence (design defect and failure to warn), strict liability (design
defect and failure to warn), breach of warranty and loss of consortium and in Hunter included negligence (design defect
and failure to warn), strict liability (design defect and failure to warn), negligent infliction of emotional distress, false
representation, and loss of consortium. 5
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CRANE CO'S MOTION
FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONwR ew ee
Ce a
first be proof that the defendant produced, manufactured, sold, or was in some way responsible for
the product. Garcia v. Joseph Vince Company (1978) 84 Cal.App.3d 868, 874.
Denzil Scott, the decedent, was never deposed in this action and no testimony directly from
the decedent has been produced in this matter. (UMF No. 17.) Additionally, in their depositions
none of the Plaintiffs presented any testimony that the decedent worked with or around a Crane Co.
product and presented no testimony the decedent was exposed to asbestos from a product which
Crane Co. is liable. (UMF Nos. 15, 16.)
In order to determine what information, if any, the plaintiffs possess to support their claims
against Crane Co., Crane Co. propounded a comprehensive set of written discovery, (UMF No. 3.)
As noted above, the Plaintiffs responses to Crane Co,’s written discovery are completely factually
devoid and shift the burden to the Plaintiffs to prove a triable issue of material fact. The Plaintiffs
have failed to point to a single instance when the Decedent was exposed to a Crane Co. product and
do not even make any mention of Crane Co. in their responses. (UME Nos. 4, 5, 6, 7.) Because
Plaintifs have failed to provide evidence of any exposure to a Crane Co. product they camot prove
the essential element of causation.
‘The Plaintiffs have no deposition testimony to support their claims against Crane Co. and
have identified no evidence in their responses to Crane Co.’s written discovery. Simply put,
Plaintiffs have present no evidence to support their claims against Crane Co., therefore Crane has
shifted the burden to plaintiffs to present a triable issue of fact. Plaintiffs cannot present any triable
issues, therefore summary judgment should be granted.
2 Summary Judgment Should Be Granted Because Plaintiff Cannot Prove That
Any Crane Co, Product Contained Asbestos
Plaintiffs’ responses to comprehensive writien discovery and deposition testimony
demonstrate that they are unable to prove that any Crane Co. product at issue actually contained
asbestos. Thus, the burden has been shifted to the plaintiffs to produce admissible evidence sufficient
to create a triable issue of material fact on that issue, under Code of Civil Procedure section
437c(p)(2). The defect alleged by the Plaintiffs is that the Crane Co, equipment and their component
parts contained asbestos. Plaintiffs do not possess and cannot reasonably obtain evidence that these
6
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CRANE CO.'S MOTION
FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONproducts contained asbestos.
Plaintiffs have provided no deposition testimony concerning the asbestos content of Crane Co.
equipment. (UMF Nos. 15, 16, 17.) Plaintiff's counsel frequently argues in opposition to motions
for summary judgment on asbestos content that the plaintiffs are not the best persons to know the
asbestos content of the products with which he worked, that expert testimony is necessary and
therefore a defendant cannot shift the burden on this issue through the plaintiff's testimony. In this
action, Plaintiffs have failed to identify a single Crane Co. product at all. (UMF Nos. 4, 5, 6, 7, 15,
16, 17.) Thus, there is not sufficient information about any Crane Co, equipment the Decedent may
have encountered to form a foundation from which an expert witness could formulate an opinion
whether the components contained asbestos or not.
Furthermore, the court in Andrews concluded that factually devoid discovery responses were
sufficient to shift the burden of production on the issue of asbestos content. Andrews v. Foster
Wheeler, LLC, supra, 138 Cal. App. 4th 96, 111. To determine if the Plaintiffs had any additional
information in this area, Crane Co. propounded interrogatories that asked the Plaintifis for all
information they possess to support their contention that any Crane Co. product contained asbestos.
(UMF No. 18.) Plaintiffs failed to provide any substantive response and only stated “Plaintiffs
reserve the right to supplement or amend this response as discovery and investigation continue.”
(UME No. 19.) Plaintiffs have failed to supplement this response. (UMF No. 7.) Likewise, despite a
specific interrogatory on the issues, Plaintiffs” responses do not provide a description of the type,
color, size, weight, texture, shape, length, width, and material composition of a Crane Co. product; a
Gescription of the produet’s application, use and purpose; a description of the system to which any
finished product was attached; a specification of the product's temperature rating and pressure rating;
a description of the material, if any, that flowed through or was processed by any finished product;
and the product’s model name and seria! number ~ all of which would be basic information which
could provide a foundation from which someone could possible determine whether the product
contained asbestos. (UMF No. 20.)
‘The Plaintiffs have failed to produce any evidence whatsoever that any Crane Co. product
contained asbestos. Crane Co. has established through deposition testimony and factually devoid
1
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CRANE CO.'S MOTION
FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONdiscovery responses that the Plaintiffs do not possess nor can they obtain aity evidence that the
Decedent encountered any Crane Co. product that contained asbestos. Therefore, summary judgment
should be granted since Plaintiffs cannot establish this essential element of his causes of action.
3. Summary Judgment Should Be Granted Because Plaintiff Cannot Prove That
Respirable Ashestos Fibers were Released from a Crane Co. Product
Even if Plaintiffs could somehow establish that the Decedent encountered Crane Co.
equipment and that equipment contained asbestos components, Plaintiffs cannot establish exposure to
respirable fibers released from that equipment. A threshold issue in asbestos litigation is exposure to
the defendant’s product. See, e.g., Rutherford v. Owens-Iinois, Inc, (1997) 16 Cal 4th 953, 975-76.
“If there has been no exposure, there is no causation.” Lineaweaver v. Plant Insulation Co, (1995) 31)
Cal. App.4th 1409, 1415-16. A plaintiff must prove exposure to a defendant's product by
presenting evidence with respect to the time, location and actual circumstances of his exposure to the
defendant's asbestos-related activities so that exposure is a possible factor in causing the disease. Id.
at 1416. “[A]sbestos materials do not pose a health risk when they are intact and undisturbed,”
Grahn v. Tosco Corp. (1997) 38 Cal. App. 4" 1373, 1397 (disapproved on other grounds by
Camargo v. fjaarda Dairy, Inc, (2001) 25 Cal. 4" 1235 and Hooker v. Dep't of Transp. (2002) 27
Cal. 4" 198.) Ata minimum, the plaintiff must establish that the defendant’s product released
respirable asbestos fibers into his breathing zone, since “[a]n asbestos-containing product becomes
dangerous only when it can be shown that the asbestos readily ieaves the product and is released as
particles or fibers into the air.” Kurrack vy. American Dist. Tele. Co. (1993) 252 Ill. App. 3d 885,
892.5
To determine whether Plaintiffs possessed any evidence on this issue, Crane Co. served 4
special interrogatory which asked Plaintiffs to describe in detail how asbestos dust was allegedly
released from any Crane Co. product. (UME No. 21.) In response, Plaintiffs failed to provide any
> attached as Exhibit H tothe Declaration of Brendan J. Tuohy, filed and served concurrently herewith
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CRANE CO-$ MOTION
FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONinformation and stated only “Plaintiffs reserve the right to supplement ot amend this response as
discovery and investigation continue.” (UMF No. 22.) Plaintiffs have not supplemented this
response, (UME-No. 7.) Additionally, Plaintiffs have presented no deposition testimony concerning
even a single instance of the Decedent working with a Crane Co. product. (UMF Nos. 15, 16, 17.)
‘The Plaintiffs have failed to present any evidence that the Decedent ever even encountered a Crane
Co. product, and certainly have presented no evidence of how the Decedent was exposed to respirable
asbestos fibers released from a Crane Co. product. (UMF Nos. 4, 5, 6, 7, 15, 16, 17, 21, 22.)
Without evidence of the time, location or actual circumstances of how asbestos was released
from a Crane Co. product, Plaintiffs are left with nothing more than conjecture and speculation of
insufficient weight to support a reasonable inference of causation, Hunter v. Pacific Mechanical
Corp., supra, 37 Cal.App.4th 1282, 1289. Therefore, they cannot establish the proximate cause and
summary judgment should be granted.
A. Summary Adjudication
As an alternative to summary judgment, the Court may grant summary adjudication as any
cause of action or claim for damages, or one or more issues of duty, if there is no merit to a cause of
action, if there is a complete defense to a cause of action, if there is no merit to a claim for damages
and/or that the defendant did not owe a duty to plaintiff. See CCP § 437e(H(1). Where summary
adjudication is sought, the moving party should set forth each issue for resolution separately. The
judicial intent of subdivision (£) of Code of Civil Procedure section 437¢ is saving time and costs of
presenting the trier of fact with unnecessary issues to resolve. See Lilienthal & Fowler v. Superior
Court (1993) 12 Cal. App.4th 1848, 1854-1855.
ISSUE 1; The third cause of action for enterprise liability fails as a matter of law
Plaintiffs also claim that Crane Co. remains liable under an Enterprise Liability theory (Le.
that liability attaches to each named defendant to the extent of their market share). Specifically, this
Enterprise Liability theory alleges that Crane Co. is liable for allegedly supplying asbestos or
asbestos-containing products which caused damage to the Decedent, even though Plaintiffs cannot
identify any specific exposure to a defective product manufactured, supplied or controlled by Crane
Co. as a potential cause of Decedent’s injuries.
9
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CRANE COS MOTION
FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONBow bw
Enterprise Liability is premised on the situation made famous by Summers v. Tice (1948) 33
Cal.2¢ 80, in which the California Supreme Court shifted the burden to each of the two wrongdoers
to prove that their negligent actions did not injure the plaintiff therein. The Summers court reasoned
that it would be unjust to preclude the plaintiff's recovery for the sole reason that he could not
provide which of two negligent defendants actually shot him. Jd. at 88.
However, Chavers v. Gatke Corp. (2003) 107 Cal.App.4* 606, rejected such a theory of
liability in the context of asbestos litigation. In confirming the trial court’s proper refusal to instruct;
the jury on Enterprise liability, the Chavers Court held that such theories are only proper in the
context of cases which “involve conduct by a small number of individuals whose actions resulted in a
tort against a single plaintiff, usually over a short span of time, and the defendant held liable was
either a direct participant in the acts which caused damage, or encouraged and assisted the person
who directly caused the injuries by participating in a joint activity.” Jd. at 615, quoting Sindell v.
Abbott Laboratories (1980) 26 Cal.3d $88, 605-606. Applying such a theory “in such
industry-wide circumstances [as asbestos litigation} ‘would expand the [Enterprise Liability] doctrine
far beyond its intended scope and would render virtually any manufacturer liable for the defective
products of an entire industry, even if it could be demonstrated that the product which caused the
injury was not made by the defendant.” id.
Here, Plaintifis seeks to apply the Enterprise Liability theory in precisely this impermissible
manner. As this theory is specifically prohibited in the asbestos litigation context per Chavers, this,
cause of action fails against Crane Co. as a matter of law,
ISSUE 2: The fourth cause of action for false representation fails as a
matter of law.
To establish false representation, Plaintiff must prove: 1) that defendant made a material
representation to plaintiff/decedent; 2) that the representation was false; 3) the defendant knew the
representation to be untrue or did not have sufficient knowledge to warrant belief that it was true; 4)
that defendant made the representation with intent to induce plaintifffdecedent to act in reliance
thereon; 5) plaintifi/decedent reasonably believed the representation to be true; 6) plaintifi/decedent
10
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CRANE CO.’S MOTION
FOR SUMMARY JUDGMENT OR, IN'THE ALTERNATIVE, SUMMARY ADJUDICATIONpom
Rowe
relied on the representation; and 7) plaintifi/decedent suffered damage thereby (causation), Hobart v.
Hobart Estate Co. (1945) 26 Cal 2d 412, 422. See also Civil Code Section 1709. There is no
evidence to support any of these elements. (UMF No. 23.) Therefore, Plaintifis’ fourth cause of
action fails as a matter of law.
ISSUE 3: There is no evidence to support the cause of action for punitive damages.
Civil Code Section 3294(a) expressly requires “clear and convineing evidence” of a
dofendant’s oppressive, fraudulent or malicious conduct before an award of punitive damages can be
made. There is no evidence to establish that Crane Co. was oppressive, fraudulent or malicious.
(UMF No. 24.) As such, the Plaintiffs clearly cannot satisfy the “clear and convincing evidence”
standard with respect to any conduct on the part of Crane Co. which is alleged to be oppressive,
fraudulent or malicious, and this claim must fail.
IV. CONCLUSION
As set forth herein, Plaintiffs do not possess and cannot reasonably obtain evidence to identify
a product manufactured or supplied by Crane Co.; that such product contained asbestos; and/or that
respirable dust was released from such products to proximately cause the Decedent’s injuries.
Therefore, Crane Co. respectfully requests that this Court grant summary judgment as to each and
every cause of action pled against Crane Co., or in the altemative, grant summary adjudication for the
identified causes of action.
KIRKPATRICK & LOCKHART PRESTON
GATES ELLIS Lup
‘Dated: March 28, 2007 By: /s/BrendanJ.Tuohy
BRENDAN J. TUOHY
Atiomeys for Defendant
CRANE CO.
i
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CRANE CO.'S MOTION
FOR SUMMARY JUDGMENT 08, IN THE ALTERNATIVE, SUMMARY ADIUDICATION
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RAYMOND L. GILL (SBN 153529) BRENDAN J, TUQHY (SBN 233253) KIRKPATRICK & LOCKHART PRESTON GATES ELLIS Lup 55 Second Street, Suite 1700 San Francisco, CA 94105 Telephone: 415.882.8200 Facsimile: 415.882.8220 Attomeys for Defendant CRANE CO. ELECTRONICALL FILED i Superior Court of County of San Francisc MAR 29 2007 | GORDON PARK-LI, Clerk BY: RAYMOND K. WON Deputy Clerk IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO NANCY MARIE SCOTT, et al., Plaintiffs, V5, AC AND §, INC., et al. Defendants. MEMORANDUM OF POINTS and AUTHORITIES IN SUPPORT OF DEFENDANT CRANE CO.'S MOTION FOR ASBESTOS RELATED CASE Case No. 443236 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CRANE CO.'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Date: June 15, 2007 Time: 9:30 a.m. Dept.: 302 Judge: Hon. Patrick Mahoney Trial Date: July 16, 2007 Complaint Filed: July 20, 2005 SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION £ i | |I. Tv. A. The Parties... B, Discovery... A. Legal Standard for Summary Judgment. TABLE OF CONTENTS Page(s) INTRODUCTION FACTUAL BACKGROUND LEGAL ARGUMENT .. B. Summary Judgment Should Be Granted Because Plaintiff Cannot Prove Exposure to a A. Crane Co. Product That Contained Asbestos. 1. Summary Judgment Should Be Granted Because Plaintiffs Cannot Prove That Crane Co, Manufactured or Supplied any Product Alleged to be Defective 2. ‘Summary Judgment Should Be Granted Because Plaintiff Cannot Prove That Any Crane Co, Product Contained Asbestos. 3. Summary Judgment Should Be Granted Because Plaintiff Cannot Prove That Respirable Asbestos Fibers were Released from a Crane Co. Product .... 7 Summary Adjudication CONCLUSION, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CRANE CO.'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONTABLE OF AUTHORITIES CASES Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826.. Andrews v. Foster Wheeler, LLC (2006) 138 Cal. App. 4th 96. Andrews v. Foster Wheeler, LLC, supra, 138 Cal. App. 4th 96 ... Chavers y. Gatke Corp. (2003) 107 Cal. App. 4th 606.. Dumin y Oweas-Corning Fiberglas Corp. (1994) 28 Cal. App. 4th 650 ... Garcia v. Joseph Vince Company (1978) 84 Cal. App. 34 868 Grahn v. Tosco Corp. (1997) 58 Cal. App. 4th 1373... Hobart v. Hobart Estate Co. (1945) 26 Cal. 2d 412... Hooker v. Dep't of Transp. (2002) 27 Cal. 4th 198.... Hunter v. Pacific Mechanical Corp., supra, 37 Cal. App. 4th 1282 ... Kurrack v. American Dist. Tele. Co. (1993) 252 Ill. App. 3d 885... Lee v. Electric Motor Division (1985) 169 Cal. App. 3d 375... Lilienthal & Fowler v. Superior Court (1993) 12 Cal. App. 4th 1848 .. MeGonnell, 98 Cal. App. 4th at 1103 (citations omitted). Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal. 4th 953 .. Sindell v. Abbott Laboratories (1980) 26 Cal. 3d 588... Smith v. ACandS, Inc. (1994) 31 Cal. App. 4th 77 Summers v. Tice (1948) 33 Cal, 2d 80 Weber ¥. John Crane, Inc. (2006) 143 Cal. App. 4th 1433 .. Weber v. John Crane, Inc., supra, 143 Cal. App. 4th 1433...... ‘MEMORANDUM OF POINTS AND AUTHORITIAS IN SUPPORT OF DEFENDANT CRANE COS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONaa wR ww STATUTES Code of Civil Procedure § 4370(f)(1) Code of Civil Procedure § 1709. Code of Civil Procedure § 437¢ Code of Civil Procedure § 437e(p)(2).. Code of Civil Procedure § 3294(a)... iv MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CRANE CO'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONL INTRODUCTION Plaintiffs Nancy Scott, Joanne Wolfarth, Michael Scott, Robert Scott, Thomas Scott, and Mary Sobolik (“Plaintiffs”) allege that the decedent, Denzil Scott (“Decedent”), suffered from lung cancer as a result of exposure to asbestos-containing products manufactured or supplied by various defendants, including Crane Co. However, through discovery, the Plaintiffs have not identified a single asbestos-containing product that Crane Co. is alleged to have manufactured, supplied or controiled, Moreover, in their written discovery responses, Plaintiffs could not point to any relevant facts, witnesses or documents to demonstrate that the Deccdent was ever exposed to asbestos- containing products manufactured or supplied by Crane Co. Therefore, summary judgment should be granted. I FACTUAL BACKGROUND A. The Parties Decedent Denzil Scott served as Seaman in the United State Navy from 1940 to 1960 and then spent his civilian career as an electrician and instrument technician. (UME No, 1.) Crane Co. is alleged in this action to have manufactured and supplied asbestos-containing products which have caused, in part, Decedent's injuries, (UMF No. 2.) B. Discovery Crane Co. propounded comprehensive case-specilic discovery seeking detailed information about all of the facts, witnesses and documents upon which Plaintiffs intend to rely to prove their claims against Crane Co.’ (UMF No. 3.) Thereafter, Plaintiffs respond to each and every inferrogatory with boilerplate objections and the phrase “Plaintiffs reserve the right to supplement or amend this response as discovery and investigation continue.” (UMF No. 4.) The responses make no specific mention of Crane Co. or any work the Decedent may have done to or around a Crane Co, product. (UMF No. 5.) Simply put, Plaintiff's responses provide no details about a Crane Co. product the Decedent may have been exposed, such as the type of Crane Co. product the Plaintifis claim exposure, how the Decedent was exposed to asbestos from these products or the frequency that ' In Crane Co.'s specially prepared interrogatories to the Plaintiffs, Crane Co, is defined to include itself individually and forall entities Plaintiffs claim Crane Co. is the successor-in-inerest. (UMF No. 3.) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CRANE CO,'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONthe Decedent encountered a Crane Co. product. (UMF No. 6.) Plaintiffs have failed to amend or provide any supplemental responses to Crane’s written discovery. (UMF No. 7.) In Crane Co.’s interrogatories, Plaintiffs were asked to identify all persons with knowledge supporting their claims against Crane Co., and to explain how such knowledge supported those claims. (UMF No. 8.) In response the Plaintiffs provided no individuals and only included the statement “Plaintiffs reserve the right to supplement or amend this response as discovery and investigation continue.” (UMF No. 9.) Plaintiffs were also asked to identify and produce all documents supporting their claims against Crane Co. (UMF No. 10.) In response, the Plaintiffs did not identify any documents and only included the statement “Plaintiffs reserve the right to supplement or amend this response as discovery and investigation continue,” (UMF No. 11.) Plaintiffs also responded to Crane Co.’s Requests for Admissions and Form Interrogatories, without providing any additional information. (UMF No. 12.) Additionally, Plaintiffs’ responses to standard asbestos case interrogatorics, set one and set two, fail to provide any evidence that the decedent ever worked with or around a Crane Co. product. (UMF No. 13.) Plaintiffs Nancy Scott, Joanne Wolfarth, Michael Scott, Robert Scott, Thomas Scott, and Mary Sobolik were deposed in this action. (UMF No. 14.) Plaintiffs Michael Scott, Robert Scott and Thomas Scott were not familiar with the name Crane Co. and had no information that the decedent ever worked with or around a Crane valve. (UMF No. 15.) During their depositions, Nancy Scott, Joanne Wolfarth and Mary Sobolik did not present any information that the decedent ever worked ‘with or around a Crane Co. product or that the decedent was exposed to asbestos from a product which Crane Co. is liable. (UMF No. 16.) Additionally, Denzil Scott, the decedent, was never deposed in this action and no testimony directly from the decedent has been produced in this matter. (UME No. 17.) 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CRANE CO’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONBee Ti. LEGAL ARGUMENT A Legal Standard 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. See Aguilar v. Atlantic Richfield Co, (2001) 25 Cal.4th 826, 843. ‘A motion for summary judgment must be granted if all of the papers submitted show “there is no triable issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law. In determining whether the papers show that there is no triable issue as to any material fact the court shal! consider all of the evidence set forth in the papers and ail inferences reasonably deducible from the evidence.” CODE OF CIV. PRO., § 437c, subd. (c). The defendant’s initial burden of production is to make a prima facie showing of the nonexistence of any triable issue of material fact. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. “A prima facie showing is one that is sufficient to support the position of the party in question. No more is called for.” Id. at 851 (emphasis added.) This burden of production can be satisfied by demonstrating that the plaintiff does not possess and cannot reasonably obtain evidence to support one or more elements of the plaintiff's causes of action. McGonnell v. Kaiser Gypsum Company, Inc., (2002) 98 Cal.App.4th 1098, 1103- 1104, Two 2006 Court of Appeal decisions have confirmed that a moving defendant need not support its motion with affirmative evidence. Andrews v. Foster Wheeler, LLC (2006) 138 Cal. App. 4th 96; Weber v. John Crane, Inc. (2006) 143 Cal.App.4" 1433. In Weber, the court has refused to define the minimum evidence a defendant must present in support of its motion to shift the burden, but it pointed to Andrews and McGonnell as examples of how a motion could be supported either through factually vague responses to comprehensive discovery or through a plaintiff's own deposition testimony. In this action, a reasonable inference to be drawn from Plaintiffs’ discovery responses is that the Plaintiffs possess no evidence that the Decedent was ever exposed to a Crane Co. product. The procedural facts set forth by defendant Foster Wheeler in Andrews are instructive. Foster Wheeler established that it had served specially prepared interrogatories which sought all facts, witnesses and 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CRANE COS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONCm ae documents to support their claims against it. Likewise, Foster Wheeler asked plaintifis to identify cach person having knowledge of the facts and also to identify the facts known regarding asbestos exposure. In sesponse, the plaintiffs provided what the court described as a laundry list of people and documents without any olarification of the facts known by those witnesses or established by the documents. By way of example, the Weber court explained: “Under those circumstances, by failing to provide any information of known facts, the plaintiffs in effect stated they had no specific facts supporting their claim against the defendant.” Weber v. John Crane, Inc., supra, 143 Cal.App.4" 1433. The Andrews court concluded: “If plaintiffs respond to comprehensive interrogatories secking all known facts with boilerplate answers that restate their allegations, or simply provide laundry lists of people and/or documents, the burden of production will almost certainly be shifted to them once defendants move for summary judgment and properly present plaintiffs’ factually devoid discovery responses.” Andrews v. Foster Wheeler, LLC, supra, 138 Cal. App. 4th 96, 107. Here, Crane Co. has propounded an “all facts” interrogatory similar to Foster Wheeler's. (UMF No. 3.) Additionally, several of Crane Co.’s special interrogatories ask plaintiffs to identify each person with knowledge of the Decedent's exposure to Crane Co, products and how their knowledge supports their claims against Crane Co. (UMF No. 8.) Plaintiffs did not identify a single witness. (UMF Nos. 9.) Likewise, Crane Co. propounded specific interrogatories that asked Plaintiff| to identify the specific documents which he contends support his claim and specific interrogatories which seek the facts which could possibly relate to the elements of the claims against Crane Co. (UMF No. 10.) The Plaintiffs failed to identify a single document that supports their claims against Crane Co. (UMF No. 11.) The Plaintifis failure to identify any witnesses or documents against Crane Co. is the type of evidence a defendant can point to shift the burden of production on a motion for summary judgment. Based upon these discovery responses, it is clear that the Plaintiff have no evidence that support their claims against Crane Co. Accordingly, Crane Co, has satisfied the burden of production and Plaintiffs now bear the burden of setting forth specific facts showing that a triable issue of 4 ‘MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CRANE CO.S MOTION FOR SUMMARY JUDGMENT OR, IN'THE ALTERNATIVE, SUMMARY ADJUDICATION‘material fact exists as one or more causes of action or claim for damages. CODE OF CIV. PRO. §4370(p)(2). Absent such evidence, summary judgment must be granted. B. Summary Judgment Should Be Granted Because Plaintiff Cannot Prove Exposure to a Crane Co. Product That Contained Asbestos This is a wrongful death action brought on various theories of products liability, including negligence, strict liability, and false representation. Essential elements common to each of these theories are (1) the defendant manufactured or supplied a product; (2) the product was defective; and (3) the defect proximately caused the injury. See Lee v. Electric Motor Division (1985) 169 Cal. App.3d 375, 383;7 Hunter v, Pacific Mechanical Corp., supra, 37 Cal.App-4th 1282, 1289. A threshold issue in asbestos litigation is exposure to the defendant's asbestos-containing product. See, e.g, Rutherford v. Owens-Illinois, Inc, (1997) 16 Cal.4th 953, 975-76. Plaintiffs have no evidence and cannot reasonably obtain evidence to support the required elements that Crane Co. manufactured or supplied a defective (for purposes of this motion, asbestos-containing) product, or that Mr. Scott was exposed to any asbestos from any product actually manufactured or supplied by Crane Co. 1. Summary Judgment Should Be Granted Because Plaintiffs Cannot Prove That Crane Co. Manufactured or Supplied any Product Alleged to be Defective At trial, plaintiffs bear the burden of proving that the Decedent was exposed to Crane Co.'s asbestos-containing product: “[a] threshold issue in asbestos litigation is exposure to the defendant's product, ...Ifthere has been no exposure, there is no causation.” MeGonnell, 98 Cal.App.4™ at 1103 (citations omitted). In an asbestos case, the “plaintiff rightfully bears the burden of proving exposure to a particular defendant's [asbestos] product.” Lineaweaver v Plant Insulation Co. (1995) 31 Cal App.4" 1409, 1415; see also, Dumin v Owens-Corning Fiberglas Corp. (1994) 28 Cal.App.4* 650, 658; Smith v. ACandS, Inc. (1994) 31 Cal.App.4"" 77, 89. Regardless of the theory upon which liability is predicated, to hold a defendant liable for injury caused by a particular product, there must 2 The causes of action disposed of in Lee included negligence (design defect and failure to warn), strict liability (design defect and failure to warn), breach of warranty and loss of consortium and in Hunter included negligence (design defect and failure to warn), strict liability (design defect and failure to warn), negligent infliction of emotional distress, false representation, and loss of consortium. 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CRANE CO'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONwR ew ee Ce a first be proof that the defendant produced, manufactured, sold, or was in some way responsible for the product. Garcia v. Joseph Vince Company (1978) 84 Cal.App.3d 868, 874. Denzil Scott, the decedent, was never deposed in this action and no testimony directly from the decedent has been produced in this matter. (UMF No. 17.) Additionally, in their depositions none of the Plaintiffs presented any testimony that the decedent worked with or around a Crane Co. product and presented no testimony the decedent was exposed to asbestos from a product which Crane Co. is liable. (UMF Nos. 15, 16.) In order to determine what information, if any, the plaintiffs possess to support their claims against Crane Co., Crane Co. propounded a comprehensive set of written discovery, (UMF No. 3.) As noted above, the Plaintiffs responses to Crane Co,’s written discovery are completely factually devoid and shift the burden to the Plaintiffs to prove a triable issue of material fact. The Plaintiffs have failed to point to a single instance when the Decedent was exposed to a Crane Co. product and do not even make any mention of Crane Co. in their responses. (UME Nos. 4, 5, 6, 7.) Because Plaintifs have failed to provide evidence of any exposure to a Crane Co. product they camot prove the essential element of causation. ‘The Plaintiffs have no deposition testimony to support their claims against Crane Co. and have identified no evidence in their responses to Crane Co.’s written discovery. Simply put, Plaintiffs have present no evidence to support their claims against Crane Co., therefore Crane has shifted the burden to plaintiffs to present a triable issue of fact. Plaintiffs cannot present any triable issues, therefore summary judgment should be granted. 2 Summary Judgment Should Be Granted Because Plaintiff Cannot Prove That Any Crane Co, Product Contained Asbestos Plaintiffs’ responses to comprehensive writien discovery and deposition testimony demonstrate that they are unable to prove that any Crane Co. product at issue actually contained asbestos. Thus, the burden has been shifted to the plaintiffs to produce admissible evidence sufficient to create a triable issue of material fact on that issue, under Code of Civil Procedure section 437c(p)(2). The defect alleged by the Plaintiffs is that the Crane Co, equipment and their component parts contained asbestos. Plaintiffs do not possess and cannot reasonably obtain evidence that these 6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CRANE CO.'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONproducts contained asbestos. Plaintiffs have provided no deposition testimony concerning the asbestos content of Crane Co. equipment. (UMF Nos. 15, 16, 17.) Plaintiff's counsel frequently argues in opposition to motions for summary judgment on asbestos content that the plaintiffs are not the best persons to know the asbestos content of the products with which he worked, that expert testimony is necessary and therefore a defendant cannot shift the burden on this issue through the plaintiff's testimony. In this action, Plaintiffs have failed to identify a single Crane Co. product at all. (UMF Nos. 4, 5, 6, 7, 15, 16, 17.) Thus, there is not sufficient information about any Crane Co, equipment the Decedent may have encountered to form a foundation from which an expert witness could formulate an opinion whether the components contained asbestos or not. Furthermore, the court in Andrews concluded that factually devoid discovery responses were sufficient to shift the burden of production on the issue of asbestos content. Andrews v. Foster Wheeler, LLC, supra, 138 Cal. App. 4th 96, 111. To determine if the Plaintiffs had any additional information in this area, Crane Co. propounded interrogatories that asked the Plaintifis for all information they possess to support their contention that any Crane Co. product contained asbestos. (UMF No. 18.) Plaintiffs failed to provide any substantive response and only stated “Plaintiffs reserve the right to supplement or amend this response as discovery and investigation continue.” (UME No. 19.) Plaintiffs have failed to supplement this response. (UMF No. 7.) Likewise, despite a specific interrogatory on the issues, Plaintiffs” responses do not provide a description of the type, color, size, weight, texture, shape, length, width, and material composition of a Crane Co. product; a Gescription of the produet’s application, use and purpose; a description of the system to which any finished product was attached; a specification of the product's temperature rating and pressure rating; a description of the material, if any, that flowed through or was processed by any finished product; and the product’s model name and seria! number ~ all of which would be basic information which could provide a foundation from which someone could possible determine whether the product contained asbestos. (UMF No. 20.) ‘The Plaintiffs have failed to produce any evidence whatsoever that any Crane Co. product contained asbestos. Crane Co. has established through deposition testimony and factually devoid 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CRANE CO.'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONdiscovery responses that the Plaintiffs do not possess nor can they obtain aity evidence that the Decedent encountered any Crane Co. product that contained asbestos. Therefore, summary judgment should be granted since Plaintiffs cannot establish this essential element of his causes of action. 3. Summary Judgment Should Be Granted Because Plaintiff Cannot Prove That Respirable Ashestos Fibers were Released from a Crane Co. Product Even if Plaintiffs could somehow establish that the Decedent encountered Crane Co. equipment and that equipment contained asbestos components, Plaintiffs cannot establish exposure to respirable fibers released from that equipment. A threshold issue in asbestos litigation is exposure to the defendant’s product. See, e.g., Rutherford v. Owens-Iinois, Inc, (1997) 16 Cal 4th 953, 975-76. “If there has been no exposure, there is no causation.” Lineaweaver v. Plant Insulation Co, (1995) 31) Cal. App.4th 1409, 1415-16. A plaintiff must prove exposure to a defendant's product by presenting evidence with respect to the time, location and actual circumstances of his exposure to the defendant's asbestos-related activities so that exposure is a possible factor in causing the disease. Id. at 1416. “[A]sbestos materials do not pose a health risk when they are intact and undisturbed,” Grahn v. Tosco Corp. (1997) 38 Cal. App. 4" 1373, 1397 (disapproved on other grounds by Camargo v. fjaarda Dairy, Inc, (2001) 25 Cal. 4" 1235 and Hooker v. Dep't of Transp. (2002) 27 Cal. 4" 198.) Ata minimum, the plaintiff must establish that the defendant’s product released respirable asbestos fibers into his breathing zone, since “[a]n asbestos-containing product becomes dangerous only when it can be shown that the asbestos readily ieaves the product and is released as particles or fibers into the air.” Kurrack vy. American Dist. Tele. Co. (1993) 252 Ill. App. 3d 885, 892.5 To determine whether Plaintiffs possessed any evidence on this issue, Crane Co. served 4 special interrogatory which asked Plaintiffs to describe in detail how asbestos dust was allegedly released from any Crane Co. product. (UME No. 21.) In response, Plaintiffs failed to provide any > attached as Exhibit H tothe Declaration of Brendan J. Tuohy, filed and served concurrently herewith MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CRANE CO-$ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONinformation and stated only “Plaintiffs reserve the right to supplement ot amend this response as discovery and investigation continue.” (UMF No. 22.) Plaintiffs have not supplemented this response, (UME-No. 7.) Additionally, Plaintiffs have presented no deposition testimony concerning even a single instance of the Decedent working with a Crane Co. product. (UMF Nos. 15, 16, 17.) ‘The Plaintiffs have failed to present any evidence that the Decedent ever even encountered a Crane Co. product, and certainly have presented no evidence of how the Decedent was exposed to respirable asbestos fibers released from a Crane Co. product. (UMF Nos. 4, 5, 6, 7, 15, 16, 17, 21, 22.) Without evidence of the time, location or actual circumstances of how asbestos was released from a Crane Co. product, Plaintiffs are left with nothing more than conjecture and speculation of insufficient weight to support a reasonable inference of causation, Hunter v. Pacific Mechanical Corp., supra, 37 Cal.App.4th 1282, 1289. Therefore, they cannot establish the proximate cause and summary judgment should be granted. A. Summary Adjudication As an alternative to summary judgment, the Court may grant summary adjudication as any cause of action or claim for damages, or one or more issues of duty, if there is no merit to a cause of action, if there is a complete defense to a cause of action, if there is no merit to a claim for damages and/or that the defendant did not owe a duty to plaintiff. See CCP § 437e(H(1). Where summary adjudication is sought, the moving party should set forth each issue for resolution separately. The judicial intent of subdivision (£) of Code of Civil Procedure section 437¢ is saving time and costs of presenting the trier of fact with unnecessary issues to resolve. See Lilienthal & Fowler v. Superior Court (1993) 12 Cal. App.4th 1848, 1854-1855. ISSUE 1; The third cause of action for enterprise liability fails as a matter of law Plaintiffs also claim that Crane Co. remains liable under an Enterprise Liability theory (Le. that liability attaches to each named defendant to the extent of their market share). Specifically, this Enterprise Liability theory alleges that Crane Co. is liable for allegedly supplying asbestos or asbestos-containing products which caused damage to the Decedent, even though Plaintiffs cannot identify any specific exposure to a defective product manufactured, supplied or controlled by Crane Co. as a potential cause of Decedent’s injuries. 9 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CRANE COS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONBow bw Enterprise Liability is premised on the situation made famous by Summers v. Tice (1948) 33 Cal.2¢ 80, in which the California Supreme Court shifted the burden to each of the two wrongdoers to prove that their negligent actions did not injure the plaintiff therein. The Summers court reasoned that it would be unjust to preclude the plaintiff's recovery for the sole reason that he could not provide which of two negligent defendants actually shot him. Jd. at 88. However, Chavers v. Gatke Corp. (2003) 107 Cal.App.4* 606, rejected such a theory of liability in the context of asbestos litigation. In confirming the trial court’s proper refusal to instruct; the jury on Enterprise liability, the Chavers Court held that such theories are only proper in the context of cases which “involve conduct by a small number of individuals whose actions resulted in a tort against a single plaintiff, usually over a short span of time, and the defendant held liable was either a direct participant in the acts which caused damage, or encouraged and assisted the person who directly caused the injuries by participating in a joint activity.” Jd. at 615, quoting Sindell v. Abbott Laboratories (1980) 26 Cal.3d $88, 605-606. Applying such a theory “in such industry-wide circumstances [as asbestos litigation} ‘would expand the [Enterprise Liability] doctrine far beyond its intended scope and would render virtually any manufacturer liable for the defective products of an entire industry, even if it could be demonstrated that the product which caused the injury was not made by the defendant.” id. Here, Plaintifis seeks to apply the Enterprise Liability theory in precisely this impermissible manner. As this theory is specifically prohibited in the asbestos litigation context per Chavers, this, cause of action fails against Crane Co. as a matter of law, ISSUE 2: The fourth cause of action for false representation fails as a matter of law. To establish false representation, Plaintiff must prove: 1) that defendant made a material representation to plaintiff/decedent; 2) that the representation was false; 3) the defendant knew the representation to be untrue or did not have sufficient knowledge to warrant belief that it was true; 4) that defendant made the representation with intent to induce plaintifffdecedent to act in reliance thereon; 5) plaintifi/decedent reasonably believed the representation to be true; 6) plaintifi/decedent 10 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CRANE CO.’S MOTION FOR SUMMARY JUDGMENT OR, IN'THE ALTERNATIVE, SUMMARY ADJUDICATIONpom Rowe relied on the representation; and 7) plaintifi/decedent suffered damage thereby (causation), Hobart v. Hobart Estate Co. (1945) 26 Cal 2d 412, 422. See also Civil Code Section 1709. There is no evidence to support any of these elements. (UMF No. 23.) Therefore, Plaintifis’ fourth cause of action fails as a matter of law. ISSUE 3: There is no evidence to support the cause of action for punitive damages. Civil Code Section 3294(a) expressly requires “clear and convineing evidence” of a dofendant’s oppressive, fraudulent or malicious conduct before an award of punitive damages can be made. There is no evidence to establish that Crane Co. was oppressive, fraudulent or malicious. (UMF No. 24.) As such, the Plaintiffs clearly cannot satisfy the “clear and convincing evidence” standard with respect to any conduct on the part of Crane Co. which is alleged to be oppressive, fraudulent or malicious, and this claim must fail. IV. CONCLUSION As set forth herein, Plaintiffs do not possess and cannot reasonably obtain evidence to identify a product manufactured or supplied by Crane Co.; that such product contained asbestos; and/or that respirable dust was released from such products to proximately cause the Decedent’s injuries. Therefore, Crane Co. respectfully requests that this Court grant summary judgment as to each and every cause of action pled against Crane Co., or in the altemative, grant summary adjudication for the identified causes of action. KIRKPATRICK & LOCKHART PRESTON GATES ELLIS Lup ‘Dated: March 28, 2007 By: /s/BrendanJ.Tuohy BRENDAN J. TUOHY Atiomeys for Defendant CRANE CO. i MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CRANE CO.'S MOTION FOR SUMMARY JUDGMENT 08, IN THE ALTERNATIVE, SUMMARY ADIUDICATION