Motion,Ex Parte: KENNETH MOSES SR. VS. KAISER GYPSUM COMPANY, INC. et al

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                Nandor B. Krause (Bar No. 148718)
nkrause@archernorris.com
Sabrina L. Axt (Bar No. 238186)

saxt@archernorris.com ELECTRONICALLY
ARCHER NORRIS FILED
A Professional Law Corporation
2033 North Main Street, Suite 800  Coumy ofan Prencieco
Walnut Creek, California 94596-3759
Telephone: 925.930.6600 40/13/2015,
Facsimile: 925.930.6620 BY:ROMY RISK

Deputy Clerk

Attorneys for Intervenors
MARYLAND CASUALTY COMPANY and
FIREMAN’S FUND INSURANCE COMPANY

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO
KENNETH MOSES, SR., Case No. CGC-13-276180
Plaintiff, DECLARATION OF SABRINA L, AXT IN
SUPPORT OF INTERVENORS’ EX
v. PARTE APPLICATION FOR LEAVE TO

FILE COMPLAINT-IN-INTERVENTION
KAISER GYPSUM COMPANY, INC., et

al., Hearing Date: October 13, 2015
Time: 11:00 a.m.
Defendants. Dept.: 503
Judge: Hon. Teri L. Jackson

Action Filed: August 21, 2013

I, SABRINA L. AXT, declare;

1, Lam an attorney at law duly licensed to practice before all Courts of the State of
California and an associate with the law firm of Archer Norris, attorneys of record for Intervenors
MARYLAND CASUALTY COMPANY and FIREMAN’S FUND INSURANCE COMPANY
(collectively referred to as “INTERVENORS”).

2. [have reviewed all of the files relevant to the claims against MARCONI
PLASTERING COMPANY, INC. (“MARCONI PLASTERING”) in this action and am generally
familiar with the facts of this case. Unless specifically stated to be made upon information and
belief, I possess personal knowledge of the matters set forth herein and, if called upon as a

witness in this matter, I could and would competently testify thereto.
MP362/2257262-1

“DECLARATION OF SABRINA L. AXT IN SUPPORT OF INTERVENORS’ EX PARTE APPLICATION FOR LEAVE TO

FILE COMPLAINT-IN-INTERVENTION°°

3. Attached hereto as Exhibit A is a true and correct copy of Plaintiffs’ Complaint for
Personal Injury - Asbestos filed August 21, 2013.

4. MARCONI PLASTERING is a suspended California corporation. (See Exhibits A
and B to Request for Judicial Notice submitted herewith.) Being a suspended corporation,
MARCONI PLASTERING has not filed an answer, or otherwise appeared in this action. No
default has been taken by plaintiff, or entered against MARCONI PLASTERING.

5. If MARCONI PLASTERING were an active corporation, INTERVENORS
MARYLAND CASUALTY and FIREMAN’S FUND would provide a defense under a
reservation of rights pursuant to their respective insurance policies.

6. On October 9, 2015, my office provided notice to all parties regarding
INTERVENORS’ ex-parte Application for Leave to File the Complaint In Intervention. Attached
hereto as Exhibit B is a true and correct copy of the October 9, 2015 correspondence sent by my
office to all parties providing notice of this ex-parte appearance on October 13, 2015.

7. Attached hereto as Exhibit C is a true and correct copy of the Proposed Complaint
in Intervention by INTERVENORS MARYLAND CASUALTY and FIREMAN’S FUND.

I declare under penalty of perjury under the laws of the State of California that the

foregoing is true and correct. Executed this ae day of October, 2015 in Walnut Creek,

California.
Sabrina L. Axt f
MP362/2257262+1 2

DECLARATION OF SABRINA L. AXT IN SUPPORT OF INTERVENORS’ EX PARTE APPLICATION FOR LEAVE TO
FILE COMPLAINT-IN-INTERVENTIONEXHIBIT “A”8 3 3
wd

a E &
2 x
gegsss
PEZxBS
S2s85q
BRELSE
ae
a 3

ALAN R. BRAYTON, ESQ,, S. Bi 3685 . ." ENDORSED

DAVID R, DONADIO, ESO., S.B, #154436 FILED
BRAYT ON@PURCELL LUP San Francisco County Superior Court
2305 Ruch Larding Road AUG 212013
us iding Roa
P.O, Box 6169 8
ees 94948-6169 CLERK OF THE COURT
oy Dens

Attorneys for Plaintiff

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

KENNETH MOSES, SR., ASBESTOS CGC -13-276180

Plaintiff,
COMPLAINT FOR PERSONAL INJURY -
vs. ASBESTOS
KAISER GYPSUM COMPANY, INC.; (Pursuant Case Management Order, Filed
GEORGIA-PACIFIC LLC (PKA GEORGIA- une 29, 2012)

PACIFIC CORPORATION);
KELLY-MOORE PAINT COMPANY, INC.;
UNION CARBIDE CORPORATION;
AMES DRYWALL PRODUCTS

COMPANY.

HAMILTON MATERIALS, INC,
CONSOLIDATED INSULATION, INC,
DOUGLASS INSULATION COMPANY,

INC.;

GOLDEN GATE DRYWALL, INC;

CAHILL CONSTRUCTION CO,, INC;
FDCC CALIFORNIA, INC.;

JAMES A. NELSON CO., INC.;

MARCONI PLASTERING COMPANY,
INC,;

TOM OAKS DRYWALL;

J & R CONSTRUCTION;

and DOES 1 through 800, inclusive,

THIS CAGE 18 SUBJECT TO
MANDATORY ELECTRONIC FILING
PURSUANT TO AMENDED G.0. 158

ARAL AAA

Defendants.

KUsjooht tfeestathemn

1
COMPLAINT frrOR & PERSONAL. INJURY = ASBESTOSFIRST. CAUSE OF ACTION
(Negligence (Manufacturers/Suppliers))

PLAINTIFF KENNETH MOSES, SR. COMPLAINS OF DEFENDANTS
HEREINBELOW NAMED IN PARAGRAPH 3, THEIR "ALTERNATE ENTITIES" AND
BACH OF THEM, AND FOR A CAUSE OF ACTION FOR NEGLIGENCE ALLEGES:

1. The true names and capacities, whether individual, corporate, associate,
governmental or otherwise, of defendants DOES 1 through 300, inclusive, are unknown to
plaintiff at this time, who therefore sues said defendants by such fictitious names. When the true
names and capacities of said defendants have been ascertained, plaintiff will amend this
complaint accordingly, Plaintiff is informed and believes, and thereon alleges, that each
defendant designated herein as a DOE is responsible, negli gently or in some other actionable
manner, for the events and happenings hereinafter referred to, and caused injuries and damages
proximately thereby to the plaintiff, as hereinafter alleged.

2 At all times herein mentioned, each of the defendants was the agent, servant,
employee and/or joint venturer of his co-defendants, and each of them, and at all said times, each
defendant was acting in the full course and scope of said agency, service, employment and/or
joint venture.

3. Plaintiff is informed and believes, and thereon alleges that at all times herein
mentioned, defendants: KAISER GYPSUM COMPANY, INC.; GEORGIA-PACIFIC LLC
(FKA GEORGIA-PACIFIC CORPORATION); KELLY-MOORE PAINT COMPANY, INC.;
UNION CARBIDE CORPORATION; AMES DRYWALL PRODUCTS COMPANY;
HAMILTON MATERIALS, INC.; CONSOLIDATED INSULATION, INC.; DOUGLASS
INSULATION COMPANY, INC.; GOLDEN GATE DRYWALL, INC.; and DOES | through
300, inclusive, were individuals, or corporations, partnerships and/or unincorporated associations}

organized and existing under and by virtue of the laws of the State of California, or the laws of

|| some other state or foreign jurisdiction, and that said defendants, and each of them, were and are

authorized to do and are doing business in the State of California, and that said defendants have

regularly conducted business in the County of San Francisco, State of California.

Ved ARAL DN Bie:

spd 2
COMPLAINT FOR PERSONAL INJURY - ASHESTOSCon AW PR WN

NN YN YN NK NY Y— ee Se ee ~
BNRRRBSBRRSSESEIWIABDEBHRA S

4, Atall times herein mentioned, each of the named defendants and DOES | through
300 was the successor, successor in business, successor in product line or a portion thereof,
assign, predecessor, predecessor in business, predecessor in product line or a portion thereof,
parent, subsidiary, wholly or partially owned by, or the whole of partial owner of or member in
an entity researching, studying, manufacturing, fabricating, designing, modifying, labeling,
assembling, distributing, leasing, buying, offering for sale, supplying, selling, inspecting,
servicing, installing, contracting for installation, repairing, marketing, warranting, rebranding,
manufacturing for others, packaging and advertising a certain substance, the generic name of
which is asbestos and other products containing said substance. Said entities shall hereinafter
collectively be called "alternate entities." Each of the herein named defendants is liable for the
tortious conduct of each successor, successor in business, successor in product line or a portion
thereof, assign, predecessor in product line or a portion thereof, parent, subsidiary, whole or
partial owner, or wholly or partially owned entity, or entity that it was a member of, or funded,
that researched, studied, manufactured, fabricated, designed, modified, labeled, assembled,
distributed, leased, bought, offered for sale, supplied, sold, inspected, serviced, installed,
contracted for installation, repaired, marketed, warranted, rebranded, manufactured for others and
advertised a certain substance, the generic name of which is asbestos and other products
containing said substance. The following defendants, and each of them, are liable for the acts of
each and every “alternate entity," and each of them, in that there has been a virtual destruction of
plaintiff's remedy against each such “alternate entity"; defendants, and each of them, have
acquired the assets, product line, or a portion thereof, of each such “alternate entity"; such
"alternate entity"; defendants, and each of them, caused the destruction of plaintiff's remedy
against each such “alternate entity”; cach such defendant has the ability to assume the risk-
spreading role of each such “alternate entity"; and that each such defendant enjoys the goodwill

originally attached to each such "alternate entity."

DEFENDANT TERNA’ TY
KAISER GYPSUM COMPANY, INC. LEHIGH HANSON, INC.
Me

Etec AROTLDI egy ol

ed 3
COMPLAINT FOR PERSONAL INJORY - ASBESTOSSO eR Aw Rw N

EEEND - ALTERNATE ENTITY

GEORGIA-PACIFIC LLC (FKA BESTWALL GYPSUM COMPANY - -
GEORGIA-PACIFIC CORPORATION) CALIFORNIA WESTERN RAILROAD
COLUMBIA VALLEY LUMBER COMPANY

KELLY-MOORE PAINT COMPANY, INC. FRANK W. DUNNE COMPANY
DUNNE QUALITY PAINTS

UNION CARBIDE CORPORATION UNION CARBIDE CHEMICALS AND PLASTICS
COMPANY, INC.
UNION CARBIDE AND CARBON PRODUCTS
LINDE AIR PRODUCTS COMPANY

HAMILTON MATERIALS, INC. HAMILTON DISTRIBUTING
RAILWAY BUILDERS SUPPLY
5. Atall times herein mentioned, defendants, their “alternate entities," and each of

them, were and are engaged in the business of researching, manufacturing, fabricating, designing,
modifying, labeling, assembling, distributing, leasing, buying, offering for sale, supplying,
selling, inspecting, servicing, installing, contracting for installation, repairing, marketing,
warranting, rebranding, manufacturing for others, packaging and advertising a certain substance,
the generic name of which is asbestos and other products containing said substance.

6. Atall times herein mentioned, defendants, their "altermate entities" and each of
them, singularly and jointly, negligently and carelessly researched, manufactured, fabricated,
designed, modified, tested or failed to test, abated or failed to abate, warned or failed to warn of
the health hazards, labeled, assembled, distributed, leased, bought, offered for sale, supplied,
sold, inspected, serviced, installed, contracted for installation, repaired, marketed, warranted,
rebranded, manufactured for others, packaged and advertised, a certain substance, the generic
name of which is asbestos and other products containing said substance, in that said substance
proximately caused personal injuries to users, consumers, workers, bystanders and others,
including the plaintiff herein (hereinafter collectively called “exposed persons"), while being
used in a manner that was reasonably foreseeable, thereby rendering said substance unsafe and
dangerous for use by “exposed persons."

Mt
Mt

Abahuedhs UME Deroy pip. wot

4
COMPLAINT FOR PERSONAL IRJURY ~ ASBESTOSoOo wm a Oh Rk we

7 Defendants, their “alternate entities,” and each of them, had a duty to exercise due
care in the pursuance of the activities mentioned above and defendants, and each of them,
breached said duty of due care.

8. With regard to CAHILL CONSTRUCTION CO., INC., hereinafter “CAHILL,”
plaintiff alleges that it acted with malice, oppression or fraud, in conscious disregard of the
rights or safety of plaintiff and other persons similarly situated.

Even though CAHILL was under mandatory duties to protect workers on its job sites and
CAHILL admits that, at a CAHILL-run job site, there is nothing more important than safety,

- No CAHILL senior executive, prior to the 1980s, did anything respecting the

rights and safety of any worker with regard to asbestos;

- CAHILL cannot identify any CAHILL job superintendent'in the 1970s or 1980s

that were known to have read or reviewed the California General Safety Orders or had

any idea what they say or prescribe;

- CAHILL took no precautions at any construction site regarding asbestos, prior to

the 1980s;

- CAHILL has never prepared any written communications regarding the dangers of

asbestos;

- CAHILL never posted any notices with regard to asbestos at any of its job sites,

prior to the 1980s;

- CAHILL never employed any laborers who used any special equipment to clean

up asbestos-laden debris at any CAHILL-run job site, prior to the 1980s;

- CAHILL did not supply or make available to any of its employees or

subcontractors any special equipment for cleaning up asbestos-laden debris; nor did it

mandate the use of such special equipment;

- CAHILL took no steps to employ any housekeeping steps to eliminate, minimize

or control workers’ exposure to asbestos at any CAHILL-run job site prior to the 1980s;
Mt
Mt

HAgaieai ygseri tien pip

Diep pipet $
GOMPLAINT FOR PERSONAL INJURY - ASBESTOSCe RA YH Bw HL

- ' CAHILL never provided any change rooms, showers, baths or lavatories or

-- similar facility(ies) to address workers’ exposure to asbestos at any CAHILL-run job site

prior to the 1980s;

- CAHILL never conducted any testing for airbome asbestos at any CAHILL-run

job site prior to the 1980s;

- CAHILL has never refused to allow any subcontractor to deliver to or use

asbestos-containing products at any CAHILL-run job site;

: CAHILL has never had policy to place any warnings regarding asbestos at any

building; and

- CAHILL has made no attempt to determine how many people is has exposed to

asbestos.

Accordingly, plaintiff is entitled to recover punitive damages from CAHILL.

9. With regard to FDCC California, hereinafter “FDCC,” plaintiff alleges that it
acted with malice, oppression or fraud, in conscious disregard of the rights or safety of plaintiff
and other persons similarly situated.

Even though FDCC was under mandatory duties to protect workers on its job sites from
airborne dusts, including asbestos,

- No FDCC supervisor or management official did anything respecting the rights
and safety of any worker with regard to asbestos, during the relevant time period;

- FDCC took no precautions at any construction site regarding asbestos, during the
relevant time period;

- FDCC never prepared any written communications regarding the dangers of
asbestos, during the relevant time period;

- FDCC never posted any notices with regard to asbestos at any of its job sites,
during the relevant time periods;

- FDCC never employed any laborers who used any special equipment to clean up
asbestos-laden debris at any FDCC-run job site, during the relevant time period;

ul

inert IB HREEL THe pio eps

COMPLAINT FOR PERSONAL INJURY - ASBESToom:

eo eu DH PF WwW HN

- FDCC did not supply or make available to any of its employees or subcontractors
any special equipment for cleaning up asbestos-laden debris; nor did it mandate the use of such
special equipment;

- FDCC took no steps to employ any housekeeping steps to eliminate, minimize or
control workers’ exposure to asbestos at any FDCC-run job site during the relevant time period;

- FDCC never provided any change rooms, showers, baths or lavatories or similar
facility(ies) to address workers’ exposure to asbestos at any FDCC-run job site during the
relevant time period;

- FDCC never conducted any testing for airborne asbestos at any FDCC-run job site|
during the relevant time period;

- FDCC has never refused to allow any subcontractor to deliver to or use asbestos-
céntaining products at any FDCC-run job site;

- FDCC has never had policy to place any warnings regarding asbestos at any
building; and

- FDCC has made no attempt to determine how many people is has exposed to
asbestos.

Accordingly, plaintiff is entitled to recover punitive damages from FDCC.

10. Defendants, their “alternate entities" and each of them, knew, or should have
known, and intended that the aforementioned asbestos and products containing asbestos would
be transported by truck, rail, ship and other common carriers, that in the shipping process the
products would break, crumble or be otherwise damaged; and/or that such products would be
used for insulation, construction, plastering, fireproofing, soundproofing, automotive, aircraft
and/or other applications, including, but not limited to sawing, chipping, hammering, scraping,
sanding, breaking, removal, “rip-out," and other manipulation, resulting in the release of airborne
asbestos fibers, and that through such foreseeable use and/or handling “exposed persons,"
including plaintiff herein, would use or be in proximity to and exposed to said asbestos fibers.

1. Defendants, their “alternate entities" and each of them, knew, or should have

known, and intended that the aforementioned asbestos and asbestos-containing products would

‘Uren HepRdn roan plant 7
COMPLAINT FOR PERSONAL INJURY - ASBESTOSwo oY A KH Aw DY |

be used or handled as specified in Exhibit A, which is attached hereto and incorporated by
reference herein, resulting in the release of airborne asbestos. fibers, and that through such
foreseeable use and/or handling "exposed persons," including plaintiff herein, would be in
proximity to and exposed to said asbestos fibers.

12. Plaintiff KENNETH MOSES, SR. has used, handled or been otherwise exposed
to asbestos and asbestos-containing products referred to herein in a manner that was reasonably
foreseeable. Plaintiff's exposure to asbestos and asbestos-containing products occurred at various
locations as set forth in Exhibit A, which is attached hereto and incorporated by reference herein.

13. Asa direct and proximate result of the conduct of the defendants, their "alternate
entities," and each of them, as aforesaid, plaintiff's exposure to asbestos and asbestos-containing
products caused severe and permanent injury to the plaintiff, the nature of which, along with the
date of plaintiff's diagnosis, are set forth in Exhibit B, which is attached hereto and incorporated
by reference herein.

14. Plaintiff is informed and believes, and thereon alleges, that progressive lung
disease, cancer and other serious diseases are caused by inhalation of asbestos fibers without
perceptible trauma and that said disease results from exposure to asbestos and asbestos-
containing products over a period of time.

15. Plaintiff KENNETH MOSES, SR. suffers from a condition related to exposure to
asbestos and asbestos-containing products. Plaintiff was not aware at the time of exposure that
asbestos or asbestos-containing products presented any risk of injury and/or disease.

16. Asa direct and proximate result of the aforesaid conduct of defendants, their
“alternate entities," and each of them, plaintiff has suffered, and continues to suffer, permanent
injuries and/or future increased risk of injuries to his person, body and health, including, but not
limited to, asbestosis, other lung damage, and cancer, and the mental and emotional distress
attendant thereto, from the effect of exposure to asbestos fibers, all to his general damage in the
sum in excess of the jurisdictional limits of the Municipal Court.

17. Asa direct and proximate result of the aforesaid conduct of the defendants, their
"alternate entities," and each of them, plaintiff has incurred, is presently incurring, and will incur

secant tad 8
COMPLAINT FOR PERSONAL INIDRY - ASBESTOSCo Oe I AH aw Dw

in the future, liability for physicians, surgeons, nurses, hospital care, medicine, hospices, X-rays
and other medical treatment, the true and exact amount thereof being unknown to plaintiff at this
time, and plaintiff prays leave to amend this complairit accordingly when the true and exact cost
thereof is ascertained.

18. Asa further direct and proximate result of the said conduct of the defendants,
their "alternate entities," and each of them, plaintiff has incurred, and will incur, loss of income,
wages, profits and commissions, a diminishment of earning potential, and other pecuniary losses,
the full nature and extent of which are not yet known to plaintiff; and leave is requested to amend
this complaint to conform to proof at the time of trial.

19. Defendants, their “alternate entities," and each of them, and their officers,
directors and managing agents participated in, authorized, expressly and impliedly ratified, and
had full knowledge of, or should have known of, cach of the acts set forth herein.

20. Defendants, their "alternate entities," and each of them, are liable for the
fraudulent, oppressive, and malicious acts of their "alternate entities," and each of them, and each
defendant's officers, directors and managing agents participated in, authorized, expressly and
impliedly ratified, and had full knowledge of, or should have known of, the acts of cach of their
"alternate entities" as set forth herein.

21. The herein-described conduct of said defendants listed in this paragraph below,
their “alternate entities," and each of them, was and is willful, malicious, fraudulent, outrageous
and in conscious disregard and indifference to the safety and health of "exposed persons."
Plaintiff, for the sake of example and by way of punishing said defendants, seeks punitive
damages according to proof against the following defendants only: GEORGIA-PACIFIC LLC
(FKA GEORGIA-PACIFIC CORPORATION); KAISER GYPSUM COMPANY, INC.;
CAHILL CONSTRUCTION CO., INC.; FDCC CALIFORNIA, INC. and UNION CARBIDE
CORPORATION.

WHEREFORE, plaintiff prays judgment against defendants, their “alternate entities,"
and each of them, as hereinafter set forth.

MW

Kish Dien oles 9
COMPLAINT FOR PERSONAL INJURY - ASBESTOSCo oe a KAA RY DY

SBS = 6

4

SECOND CAUSE OF ACTION
(Products Liability)

AS AND FOR A SECOND, SEPARATE, FURTHER AND DISTINCT CAUSE OF
ACTION FOR STRICT LIABILITY, PLAINTIFF KENNETH MOSES, SR. COMPLAINS OF °
DEFENDANTS NAMED IN PARAGRAPH 3 HEREINABOVE, AND EACH OF THEM, AN!
ALLEGES AS FOLLOWS:

22. Plaintiff incorporates herein by reference, as though fully set forth herein, the
allegations contained in Paragraphs 1 through 5 and 10 through 18 of the First Cause of Action
herein.

23. Defendants, their “alternate entities," and each of them, knew and intended that
the above-referenced asbestos and asbestos-containing products would be used by the purchaser
or user without inspection for defects therein or in any of their component parts and without
knowledge of the hazards involved in such use.

24, Said asbestos and asbestos-containing products were defective and unsafe for thei
intended purpose in that the inhalation of asbestos fibers causes serious disease and/or death,
The defect existed in the said products at the time they left the possession of defendants, their
“alternate entities," and each of them. Said products did, in fact, cause personal injuries,
including asbestosis, other lung damage, and cancer to “exposed persons,” including plaintiff
herein, while being used in a reasonably foreseeable manner, thereby rendering the same
defective, unsafe and dangerous for use.

25. “Exposed persons” did not know of the substantial danger of using said products.
Said dangers were not readily recognizable by "exposed persons." Said defendants, their
“alternate entities," and each of them, further failed to adequately warn of the risks to which
plaintiff and others similarly situated were exposed,

26. In researching, manufacturing, fabricating, designing, modifying, testing or failing
to test, warning or failing to wam, labeling, assembling, distributing, leasing, buying, offering for
sale, supplying, selling, inspecting, servicing, installing, contracting for installation, repairing,
marketing, warranting, rebranding, manufacturing for others, packaging and advertising asbestos

Kalgoront iapsnee

ft peed I
COMPLAINT FOR PERSONAL INJURY - ASBESTOS2 ey a wh eB YN

and asbestos-containing products, defendants, their "alternate entities," and each of them, did so
with conscious disregard for the safety of "exposed persons" who came in contact with said
asbestos and asbestos-containing products, in that said defendants, their “altemate entities,” and
each of them, had prior knowledge that there was a substantial risk of injury or death resulting
from exposure to asbestos or asbestos- containing products, including, but not limited to,
asbestosis, other lung disabilities and cancer. Said knowledge was obtained, in part, from
scientific studies performed by, at the request of, or with the assistance of, said defendants, their
“alternate entities,” and each of them, and which knowledge was obtained by said defendants,
their “alternate entities," and each of them on or before 1930, and thereafter.

27.  Onor before 1930, and thereafter, said defendants, theit “alternate entities” and
each of them, were aware that members of the general public and other “exposed persons," who
would come in contact with their asbestos and asbestos-containing products, had no knowledge
or information indicating that asbestos or asbestos-containing products could cause injury, and
said defendants, their "alternate entities," and each of them, knew that members of the general
public and other "exposed persons," who came in contact with asbestos and asbestos-containing
products, would assume, and in fact did assume, that exposure to asbestos and asbestos-
containing products was safe, when in fact said exposure was extremely hazardous to health and
human life.

28. With said knowledge, said defendants, their “alternate entities," and each of them,
opted to research, manufacture, fabricate, design, modify, label, assemble, distribute, lease, buy,
offer for sale, supply, sell, inspect, service, install, contract for installation, repair, market,
warrant, rebrand, manufacture for others, package and advertise said asbestos and asbestos-
containing products without attempting to protect “exposed persons” from or warn “exposed
persons" of, the high risk of injury or death resulting from exposure to asbestos and asbestos-
containing products. Rather than attempting to protect “exposed persons" from, or warn
“exposed persons" of, the high risk of injury or death resulting from exposure to asbestos and
asbestos-containing products, defendants, their "alternate entities," and each of them,
intentionally failed to reveal their knowledge of said risk, and consciously and actively concealed

RAned NEON De

ned it
COMPLAINT FOR PERSONAL INJURY - ASBESTOStom

ow wn aw & w&

and suppressed said knowledge from "exposed persons" and members of the general public, thus
impliedly representing to “exposed persons" and members of the general public that asbestos and
asbestos-containing products were safe for all reasonably foreseeable uses. Defendants, their
“alternate entities,” and each of them, engaged in this conduct and made these implied
representations with the knowledge of the falsity of said implied representations,

20, ‘The above-referenced conduct of said defendants, their “alternate entities," and
each of them, was motivated by the financial interest of said defendants, their "alternate entities,"
and each of them, in the continuing, uninterrupted research, design, modification, manufacture,
fabrication, labeling, assembly, distribution, lease, purchase, offer for sale, supply, sale,
inspection, installation, contracting for installation, repair, marketing, warranting, rebranding,
manufacturing for others, packaging and advertising of asbestos and asbestos-containing
products. In pursuance of said financial motivation, said defendants, their "alternate entities,"
and cach of them, consciously disregarded the safety of "exposed persons" and in fact were
consciously willing and intended to permit asbestos and asbestos-containing products to cause
injury to “exposed persons” and induced persons to work with and be exposed thereto, including
plaintiff.

30. Plaintiff alleges that the aforementioned defendants, their “alternate entities," and
each of them impliedly warranted their asbestos and asbestos-containing products, to be safe for
their intended use but that their asbestos and asbestos-containing products, created an
unreasonable risk of bodily harm to exposed persons.

31. Plaintiff further alleges his injuries area result of cumulative exposure to asbestos
and various asbestos-containing products manufactured, fabricated, inadequately researched,
designed, modified, inadequately tested, labeled, assembled, distributed, leased, bought, offered
for sale, supplied, sold, inspected, serviced, installed, contracted for installation, repaired,
marketed, warranted, rebranded, manufactured for others, packaged and advertised by the
aforementioned defendants, their "alternate entities," and each of them and that plaintiff cannot
identify precisely which asbestos or asbestos-containing products caused the injuries complained

of herein.

srt eset nena ae 12.
COMPLAINT TO ERSONAL INJURY - ASBESTOe NV aD MW Fw ON

a

- 32.. Plaintiff relied upon defendants’, their "alternate entities'," and each of their
representations, lack of warnings, and implied warranties of fitness of asbestos and their... - |
asbestos-containing products. Asa direct, foreseeable and proximate result thereof, plaintiff has
been injured permanently as alleged herein.

33. Asadirect and proximate result of the actions and conduct outlined herein,
plaintiff has suffered the injuries and damages previously alleged.
WHEREFORE, plaintiff prays judgment against defendants, their "alternate entities," and

each of them, as hereinafter set forth.

GON a/Othiers))

AS AND FOR A FURTHER AND THIRD, SEPARATE AND DISTINCT CAUSE OF
ACTION, PLAINTIFF KENNETH MOSES, SR. COMPLAINS OF DEFENDANTS CAHILL
CONSTRUCTION CO., INC.; FOCC CALIFORNIA, INC.; JAMES A. NELSON CO., INC.;
MARCONI PLASTERING COMPANY, INC.; TOM OAKS DRYWALL, J&R
CONSTRUCTION; CONSOLIDATED INSULATION, INC.; DOUGLASS INSULATION
COMPANY, INC.; GOLDEN GATE DRYWALL, INC.; AND DOES 301 THROUGH 500
(hereinafier “Premises Owner/Contractor Liability Defendants") AND ALLEGES AS
FOLLOWS:

34. Plaintiff, by this reference, incorporates the allegations contained in paragraphs 14
through 21 of the First Cause of Action.

35. Plaintiff is informed and believes, and thereon alleges, that at all times mentioned
herein, the Premises Owner/Contractor Liability Defendants and DOES 301 through 500, were
individuals, or corporations, partnerships and/or unincorporated associations organized and
existing under and by virtue of the laws of the State of California, or the laws of some other state
or foreign jurisdiction, and that said defendants, and each of them, were and are authorized to do
and are doing business in the State of California.

36.  Atall times herein mentioned, each of the Premises Owner/Contractor Liability
Defendants was a successor, successor-in-business, assign, predecessor, predecessor-in-business,

Kc tadoneat Seip

on si 13
SOMPCATNT FOR PERSONAL INDURY - ASBESTOSSUD em NIN AH BF wWHN

NN YH NN NYY KN | S| S| Se we we He ee
ola aA aA RoR = FS 6 wm YAH RYO DD |

parent, subsidiary, wholly ot partially owned by, or the whole or partial owner of an entity
causing certain asbestos- and silica-containing insulation, other building materials; products and °
toxic substances to be constructed, installed, maintained, used, replaced and/or repaired on the
respective premises owned, leased, maintained, managed and/or controlled by them. Said
entities shall hereinafter collectively be called "alternate entities." Each of the herein-named
defendants is liable for the tortious conduct of each successor, successor-in-business, assign,
predecessor-in-business, parent, subsidiary, whole or partial owner, or wholly or partially owned
entity, that caused the presence as aforesaid of said asbestos- and silica-containing insulation and
other toxic substances, Said defendants, and each of them, are liable for the acts of each and
every "alternate entity," and each of them, in that there has been a virtual destruction of
plaintiff's remedy against each such alternate entity; defendants, and each of them, have acquired}
the assets, or a portion thereof, of each such alternate entity; defendants, and each of them, have
caused the destruction of plaintiff's remedy against each such alternate entity; each such
defendant has the ability to assume the risk-spreading role of each such alternate entity, and that
each such defendant enjoys the goodwill originally attached to cach such alternate entity.

37. ALall times mentioned herein, the Premises Owner/Contractor Liability
Defendants, and each of them, respectively, owned, leased, maintained, managed, and/or
controlled the following premises where plaintiff KENNETH MOSES, SR. was present. The
following information provided is preliminary, based on recall over events covering many years

and further investigation and discovery may produce more reliable information:

CONTRACTOR

DEFENDANTS. LOCATION TIME PERIOD
CAHILL CONSTRUCTION CO., INC; Various high-rises including but 1973-1977
FDCC CALIFORNIA, INC.JAMES A. not limited to Embarcadero

NELSON CO., INC.; GOLDEN GATE Center #2

DRYWALL, INC, J&R San Francisco, CA;

CONSTRUCTION; TOM OAKS Embarcadero Center #3

DRYWALL. San Francisco, CA

MARCONI PLASTERING COMPANY, Hyatt Regency AKA: Park Plaza 1980-1983
INC, Oakland, CA

DOUGLASS INSULATION COMPANY, Various Various

INC.

Mdinc 9 sip 14
EGMPLAINT TOR PERSONAL INJURY ~ ASBESTOS -Co IN AW Fw N-

10

CONTRACTOR |

DEFENDANTS LOCATION TIMEPERIOD
CONSOLIDATED INSULATION, INC. Various . Various ‘

Additionally, plaintiff KENNETH MOSES, SR. might have been present at these or other
Premises Owner/Contractor Liability Defendants' premises at other locations and on other .
occasions.

38. Prior to and at said times‘and places, said Premises Owner/Contractor Liability
Defendants, and each of them, respectively, caused certain asbestos- and silica-containing
insulation, other building materials, products and toxic substances to be constructed, installed,
maintained, used, supplied, replaced, and/or repaired on each of the aforesaid respective
premises, by their own workers and/or by various contractors, and caused the release of
dangerous quantities of toxic asbestos fibers and other toxic substances into the ambient air and
thereby created a hazardous and unsafe condition to plaintiff and other persons exposed to said
asbestos fibers and toxic substances while present at said premises. ,

39.  Atall times mentioned herein, said Premises Owner/Contractor Liability
Defendants, and each of them, knew or in the exercise of ordinary and reasonable care should
have known, that the foregoing conditions and activities created a dangerous, hazardous, and
unsafe condition and unreasonable risk of harm and personal injury to plaintiff and other workers!
or persons so exposed while present on each of the aforesaid respective premises.

40. _ Atall times relevant herein, plaintiff entered said premises and used or occupied
each of said respective premises as intended and for each of the respective Premises
Owner/Contractor Liability Defendants’ benefit and advantage and at each of the respective
Premises Owner/Contractor Liability Defendants' request and invitation. In so doing, plaintiff
was exposed to dangerous quantities of asbestos fibers and other toxic substances released into
the ambient air by the aforesaid hazardous conditions and activities managed, maintained,
initiated, and/or otherwise created, controlled, or caused by said Premises Owner/Contractor
Liability Defendants, and each of them.

Mt

He agaeaa ipa pip upd 15
COMP! SAINT FOR PERSONAL INJURY = ASBESTOS\ mse"

Perigggiate Se Rae eS Lone 8 ong

cot * Aiels cegarse i = elt

41 uel (iff at all times was unaware of the hazardous condition or the risk of» ~

iene pes Sa?
products and material

ait ‘anes eee afioeie
personal injury created by the aforesaid presence and use 0) asbesto is

other toxic substances on said premises.

42,  Atall times mentioned herein, said Premises Owner/Contractor Liability
Defendants, and each of them, remained in control of the premises where plaintiff was
performing his work.

43.  Atall times mentioned herein, the Premises Owner/Contractor Liability
Defendants owed to plaintiff and others similarly situated a duty to exercise ordinary care in the
management of such premises in order to avoid exposing workers such as plaintiff to an
unreasonable risk of harm and to avoid causing injury to said person.

44, Atall times mentioned herein, said Premises Owner/Contractor Liability
Defendants, and each of them, knew, or in the exercise of ordinary and reasonable care should
have known, that the premises that were in their control would be used without knowledge of, or
inspection for, defects or dangerous conditions and that the persons present and using said
premises would not be aware of the aforesaid hazardous conditions to which they were exposed
on the premises.

45,  Atall times mentioned herein, said Premises Owner/Contractor Liability
Defendants, and each of them, negligently failed to maintain, manage, inspect, survey, or control
said premises or to abate or correct, or to warn plaintiff of, the existence of the aforesaid
dangerous conditions and hazards on said premises,

46, Prior to and at the times and places aforesaid, said Premises Owner/Contractor
Liability Defendants, and each of them, respectively, caused certain asbestos- and silica-
containing insulation, other building materials, products and toxic substances to be constructed,
installed, maintained, used, replaced, and/or repaired on each of their aforesaid respective
premises, by their own workers and/or by employing various contractors, and caused the release
of dangerous quantities of toxic asbestos fibers and other toxic substances into the ambient air ‘
and thereby injured plaintiff.

Ut

K Moat ragna Sa. : “
GOMELAINT FORD INJURY> ASBESTOS
Shao, ees Ba47. Atail times mentioned herein, said Premises Owner/Contractor Liability .
Defendants; and cach of them: - 2G fee ae

a. Should have recognized that the work of said contractors would create during,
the progress of the work, dangerous, hazardous, and unsafe conditions which could or would
harm plaintiff and others unless special precautions were taken;

b. Knew or had reason to know, that the contractors it had selected and hired to
install, remove, abate or otherwise handle asbestos»containing materials were unfit, unskilled or
otherwise unqualified to do so;

‘ c. Failed to use seasonable care to discover whether the contractors it selected and|
hired to install, remove, abate or otherwise handle asbestos-containing materials were competent
or qualified to do so,

48. In part, plaintiff was exposed to dangerous quantities of asbestos fibers and other
toxic substances by reason of such contractors’ failure to take the necessary precautions.

49. ‘The work of contractors on premises controlled by the Premises
Owner/Contracior Defendants created an unsafe premise and an unsafe work place by reason of
the release of dangerous quantities of toxic substances including but not limited to asbestos.

50. The unsafe premise or work place was created, in part, by the negligent conduct off
the contractors employed by the Premises Owner/Contractor Defendants. Said negligent conduct

includes but is not limited to:

a Failure to warn of asbestos and other toxic dusts;
b. Failure to suppress the asbestos-containing or toxic dusts;
c. Failure to remove the asbestos-containing and toxic dusts through use of

ventilation or appropriate means;

d. Failure to provide adequate breathing protection, i-e., approved respirators
or masks;

e& Failure to inspect and/or test the air;

f. Failure to provide medical monitoring,
He

KAnjoneat escent 17
GGMPLAINT FOR PERSONAL INJURY - ASBESTOSg Failure to select and hire a careful and competent contractor or
subcontractor. . a . Loe

51. The Premises Owner/Contractor Defendants’ duty to maintain and provide safe
premises, a safe place to work, and to warn of dangerous conditions are non-delegable; said
duties arise out of common law, Civil Code § 1714, and Labor Code § 6400, et seq., or Health
and Safety Code § 40.200, et seq., and regulations promulgated thereunder, Therefore, the
Premises Owner/Contractor Defendants are responsible for any breach of said duties whether by
themselves or others.

52, Prior to and at said times and places, said Premises Owner/Contractor Liability
Defendants were subject to certain ordinances, statutes, and other government regulations
promulgated by the United States Government, the State of California, and others, including but
not limited to the General Industry Safety Orders promulgated pursuant to California Labor Code
§ 6400 and the California Administrative Code under the Division of Industrial Safety,
Department of Industrial Relations, including but not limited to Title VIL, Group 9 (Control of
Hazardous Substances), Article 81, §§ 4150, 4106, 4107, and 4108, and Threshold Limit Values
as documented for asbestos and other toxic substances under Appendix A, Table | of said Safety
Orders; additionally, California Health and Safety Code § 40.200, et seq., which empowers the
South Coast Area Air Quality Management District to promulgate regulations including but not
limited to S.C.A.A.Q.M.D., Rule 1403; Tide 40 Code of Federal Regulations, Chapter 1, Part 61,
et seq. -- The National Emission Standards for Hazardous Air Pollutants, which required said
Premises Owner/Contractor Liability Defendants to provide specific safeguards or precautions to
prevent or reduce the inhalation of asbestos dust and other toxic fumes or substances; and said
Premises Owner/Contractor Liability Defendants failed to provide the required safeguards and
precautions, or contractors employed by the Premises Owner/Contractor Liability Defendants
failed to provide the required safeguards and precautions. Defendants’ violations of said codes
include but are not limited to:

ue

baron tpaciphitcsne pip wed
COMPLAINT FOR PERSONAL INJURY ~ AS!oe WA Ww FF WwW N

(a) Failing to comply with statutes and allowing ambient levels of airborne .
asbestos fiber to exceed the permissible/allowable levels with regard to the aforementioned
statutes;

(b) Failing to segregate work involving the release of asbestos or other toxic
dusts;

(c) Failing to suppress dust using prescribed ventilation techniques;

(d) Failing to suppress dust using prescribed "wet down" techniques;

(e) Failing to warn or educate plaintiff or others regarding asbestos or other
toxic substances on the premises;

® Failing to provide approved respiratory protection devices;

(g) Failing to ensure "approved" respiratory protection devices were used
properly;

th) Failing to provide for an on-going health screening program for those
exposed to asbestos on the premises;

(i) Failing to provide adequate housekeeping and clean-up of the work place;

G) Failing to properly warn of the hazards associated with asbestos as
required by these statutes;

(k) Failing to properly report renovation and disturbance of asbestos-
containing materials, including but not limited to $.C.A.A.Q.MLD. Rule 1403; :

() Failing to have an asbestos removal supervisor as required by regulation,

(m) Failing to get approval for renovation as required by statutes; and

(n) Failing to maintain records as required by statute.

53. Premises Owner/Contractor Liability Defendants, and each of them, were the
"statutory employer" of plaintiff as defined by the California Labor Code and California case law.
54, Plaintiff at all times was unaware of the hazardous condition or the risk of

personal injury created by defendants' violation of said regulations, ordinances or statutes.
Wt
Ml

Kaine pi xy 19
COMPLAINT POR PERSONAL INJURY - ASBESTOS55,  Atall times mentioned herein, plaintiff was a member of the class of persons
whose safety was intended to be protected by the regulations, statutes or ordinances described in
the foregoing paragraphs,

56.  Atall times mentioned herein, said Premises Owner/Contractor Liability
Defendants, and each of them, knew, or in the exercise of ordinary and reasonable care should
have known, that the premises that were in their control would be used without knowledge of, or
inspection for, defects or dangerous conditions, that the persons present and using said premises
would not be aware of the aforesaid hazardous conditions to which they were exposed on the
premises, and that such persons were unaware of the aforesaid violations of codes, regulations
and statutes.

57, Asa legal consequence of the foregoing, plaintiff KENNETH MOSES, SR.
developed an asbestos-related illness, which has caused great injury and disability as previously
set forth, and plaintiff has suffered damages as herein alleged.

WHEREFORE, plaintiff prays judgment against defendants, their “alternate entities,”
and each of them, as hereinafter set forth.

FOURTH CAUSE OF ACTION
Aiding and Abetting Battery

{Against Metropolitan Life Insurance Company
and Does 750-790, Inclusive]

AS AND FOR A FURTHER, FOURTH, SEPARATE AND DISTINCT CAUSE OF
ACTION FOR AIDING AND ABETTING BATTERY, PLAINTIFF COMPLAINS OF
DEFENDANTS METROPOLITAN LIFE INSURANCE COMPANY, DOES 750-790, THEIR
ALTERNATE ENTITIES AND EACH OF THEM, AND ALLEGES AS FOLLOWS:

58. Plaintiff incorporates herein by reference, as though fully set forth hereat, each
and every allegation of the First and Second Causes of Action as though fully set forth herein.

59, This cause of action is for the aiding and abetting of battery by METROPOLITAN)
LIFE INSURANCE COMPANY (“MET LIFE”), primarily through its assistant medical director
Anthony Lanza, M.D., of a breach of duty committed by Johns-Manville Corporation (“J-M”).
Mt

Wied upsidelsiue i pd sank
COMPLAINT FOR PERSONAL INJURY - ASBESTOSCo I AW & wH

B= Ss

60. ‘Plaintiff is informed and believes, and thereon alleges, that at all times herein
mentioned defendant MET LIFE was and is a corporation organized and existing under and by
virtue of the laws of the State of New York or the laws of some other state or foreign jurisdiction
and that this defendant was and is authorized to do and/or was and is doing business in the State
of California, and regularly conducted of conducts business in the County of San Francisco, State
of California. At times relevant to this cause of action, MET LIFE was an insurer of J-M.

61, Plaintiff, was exposed to asbestos-containing dust created by the use of the
asbestos products manufactured, distributed and/or supplied by J-M. This exposure to the
asbestos or asbestos-related products supplied by J-M caused Plaintiff's asbestos-related disease
and injuries.

62. Starting in 1928, MET LIFE sponsored studies of asbestos dust and asbestos-
related disease in Canadian mines and mills, including those of J-M. Those studies revealed that
miners and mill workers were contracting asbestosis at relatively low levels of dust. McGill
University, which conducted the studies, sought permission from MET LIFE to publish the -
results but they were never published. MET LIFE prepared its own report of these studies.

63, Between 1929 and 1931, MET LIFE studied dust levels and disease at five U.S.
plants manufacturing asbestos-containing products, including a J-M plant. Those studies showed
that workers in substantial numbers were contracting asbestosis, at levels less than what became
the Threshold Limit Value (“TLV”) of Smppef. The MET LIFE report was never published or
disseminated except to plant owners, including J-M.

64. In 1932, MET LIFE studied dust levels and disease at the J-M plant at Manville,
New Jersey, Results were consistent with those of the Canadian and previous U.S. plant studies.
They were never published.

65, In 1934, J-M and others whose plants MET LIFE had studied agreed with MET
LIFE that it should issue a report of its studies.

66. MET LIFE submitted a draft of its report to J-M. J-M requested, for legal and
business reasons, that certain critical parts of the draft be changed. MET LIFE’s official in
charge was Lanza. MET LIFE through Lanza did make changes that J-M requested, including:

sik ti sin 2
EGHIPLAINT FOR PERSONAL INJURY > ASBESTOSoC oe NW A & wD
2 ne

(a) Deletion of MET LIFE’s conclusion that the permissible dust level for asbestos
should be less than that for silica;’ ~~ . . 4

(b) Addition of the phrase that asbestosis clinically appeared to be milder than
silicosis.

The report, thus altered, was published in 1935. Tt was misleading, and intentionally so, because
it conveyed the incorrect propositions that asbestosis was a less serious disease process than
silicosis and that higher levels of asbestos dust could be tolerated without contracting diseases
than was the case for silica dust.

67. | MET LIFE had a close relationship with J-M. It invested money in J-M. It
provided group health and life insurance to J-M. MET LIFE IN 1934 agreed to supply industrial
hygiene services to J-M, including dust counts, training employees to monitor dust levels,
examining employees, and recommending protective equipment. MET LIFE and Lanza were
viewed as experts on industrial dusts.

68. In 1933, MET LIFE through Lanza issued the following advice to J-M:

(a) _Disagreeing with the recommendation ofa J-M plant physician, MET LIFE
advised against waming workers of the fact that asbestos dust is hazardous to their
health, basing its advice in view of the extraordinary legal situation;

(b) When the plant physician judged the best disposition of an employee with
asbestosis was to remove him from the dust, MET LIFE advised instead that
disposition should depend on hi