Motion,Ex Parte: CHARLES BOUDREAUX et al VS. ADVOCATE MINES, LTD et al

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HICKENNA Love &
‘ALDRIOGS LL
‘SAN FRANCISCH,

CHRISTOPHER W. WOOD (BAR NO. 113291)

MICHELLE C. JACKSON (BAR NO. 170898)
McKENNA LONG & ALDRIDGE LIP ELECTRONICALLY
101 California Street, 41" Floor FILED
San Francisco, CA 94111 Superior Cout of Caton,
Telephone: (415) 267-4000 County of San Francisco
Facsimile: (415) 267-4198 OCT 11 2007
GORDON PARK-LI, Cle
Attomeys for Defendant ,
FORD MOTOR COMPANY eee ese a eay clr

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO,
CHARLES BOUDREAUX and Case No. CGC-07-274029
DEBORAII BOUDREAUX,
DEFENDANT FORD MOTOR COMPANY’S
Plaintiffs, Svraratl CEMENT OF UNDISPUTED

‘MATERIAL Facts IN Suprort Or MOTION
FOR SUMMARY JUDGMENT, OR IN THE
ALTERNATIVE, SUMMARY ADJUDICATION OF
IssuES

vs.
ADVOCATE MINES, LTD, et al.,

Defendants.
[Filed Concurrently with Notice of Motion;
Memorandum of Points and Authoritics;
Declaration of Michelle C. Jackson with
Exhibits; [Proposed] Order]

Date:
‘TIME:
Dept: 301

Jupce: Hon. Peter J. Busch

Octeber 29, 2007
930 a.m.

‘TRIAL DaTE: November 13, 2007

Defendant FORD MOTOR COMPANY (“Ford”) hereby submits the following Separate
Statement of Undisputed Material Facts and Supporting Evidence in support of its Motion for

Summary Judgment, or in the alternative, Summary Adjudication.

DEFENDANT FORD SMOTOR COMPANY'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES.28

eRe Ea
‘SAN FRARCIECS

AsTo:

Issue No. 1 Plaintiffs’ first cause of action for negligence fails as a matter of law because there
is insufficient evidence showing that Charles Boudreaux was exposed to asbestos
from a Ford manufactured or supplied product part, which contributed to his
alleged disease.

Issue No.2 Plaintiffs’ second cause of action for strict liability fails as a matter of law because

there is insufficient evidence showing that Charles Boudreaux was exposed to
asbestos from a Ford manufactured or supplied product part, which contributed to
his alleged disease.

(ist AND 2ND Causes OF ACTION — NEGLIGENCE AND STRICT LIABILITY)

UNDISPUTED MATERIAL FACTS

EVIDENTIARY SUPPORT

1. On January 12, 2007, Plaintiffs filed their
Complaint against various defendants alleging
Charles Boudreaux’s mesothelioma resulted
from an exposure to asbestos.

2. Plaintiffs named Ford as a defendant and
asserted causes of action for negligence, strict
liability, false represcntatioa, intentional tort,

breach of warranties, loss of consortium, and

requesting punitive damages.

3. ‘The Complaint does not set forth specific
facts supporting their claims against Ford, but
the “Work History Sheets” indicate exposure to
Ford friction products occurred from 2000-
2006 while Plaintiff was employed at the 7-Up
Bottling Company.

4. On July 26, 2007, Plaintiffs’ motion for
trial preference was granted pursuant to Code
of Civil Procedure section 36(b) and trial was
set for November 13,2007.

5. The parties stipulated that San Francisco
‘Asbestos Case General Order 140 applied with
respect to the timing of motions for summary
judgment,

6. Plaintiffs responded to San Francisco
Superior Court General Order 129 Standard
‘Asbestos Case Interrogatories (*G.O. 129”) and

1. Plaintiffs’ Complaint, Exhibit A to the
Declaration of Michelle C. fackson (“Jackson
Deel”)

2. Plaintiffs’ Complaint, Exhibit A to Jackson
Deel.

3. Plaintiffs’ Complaint, L'xhibit A to Jackson
Decl.

4, Exhibit B, Order Granting Plaintiffs’ Motion
for Preferential Trial Setting, attached to Jackson
Decl.

5. Exhibit B, Order Granting Plaintiffs’ Motion
for Preferential Trial Setting, attached to Jackson
Deel.

6. Exhibit C, Plaintiffs’ Answers to Standard
Interrogatories, Set One; Exhibit D, Plaintiffs’
Answers to Standard Friction Interrogatories;

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DEFENDANT FORD MOTOR COMPANY'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS INSUPPORT OF
MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES,28

Mckee Lai
‘ALDRIDGE Th
SAN Pranersca,

Ford’s written discovery.

7. Plaintiff also provided three days of
deposition beginning on May 30, 2007.

8. While in this matter Plaintiff’: have claimed
that Mr, Boudreaux worked with Ford brakes
while employed with 7-Up Bottling Company
from 2000-2006, Plaintiffs have not set forth
any evidence to establish that these brake
products contained asbestos.

9. Most importantly, given the accepted
latency period in regards to asbestos exposure
and the development of mesothelioma, there is
no way that an exposure in 2000 could have
contributed to Plaintiff"s disease, where he was
diagnosed in September 2006.

10. Since it is commonly accepted that there is
2.15 year latency period between exposure to
asbestos and the diagnosis of mesothelioma,
Plaintiff’ s exposure to Ford products a mere six
years before his diagnosis means Ford cannot
bbe responsible for Plaintiff's illness.

Exhibit L, Plaintiffs’ Supplemental Responses to
Standard interrogatories, Set One; Exhibit F,
Plaintifls’ Responses to Ford’s Specially
Prepared Intezrogatories, Set One; Exhibit G,
Plaintiffs’ Responses to Ford’s Request for
Admissions; Exhibit H, Plaintiffs’ Responses to
Ford’s Request for Production of Documents;
Exhibit I, Plaintiffs? Responses to Ford’s Form
Interrogatories; attached to Jackson Decl.

7. Exhibit J, Deposition of Charles Boudreaux
taken April 30, 2007, and May 2-3, 2007,
attached to Jackson Decl.

8. Exhibit E, Plaintiffs’ Supplemental
Responses to Standard interrogatories, Set One
page 22, referring to Ford friction products used
at 7-Up Bottling Company from 2000-2006;

s Boudreaux taken
2007, pp. 83:22-

Exhibit J, Deposition of Ch:
April 30, 2007, and May 2~
84:20, 496:14-25, 512:3-9, 31 ,
22, $32:17-19, attached to Jackson Decl.

9. Exhibit C, Plaintiffs’ Answors to Standard
Interrogatories, Set One, Interrogatory No. 17 and
Response, pp. 8:19-9:13; Exhibit K, excerpt from
Pathology of Ashestos-Associated Diseases, 2”
Fdition, Rogali, Oury, and Sporn, 2004, pp.106-
107, attached to Jackson Decl.

10. Exhibit C, Plaintiffs’ Answers to Standard
interrogatories, Set One, Interrogatory No. 17 and
Response, pp. 8:19-9:13; Exhibit K, excerpt from
Pathology of Asbestos-Associated Diseases, 2™
Edition, Roggli, Oury, and Sporn, 2004, pp.106-
107, attached to Jackson Decl,

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DEFENDANT FORD MOTOR COMPANY'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES.28

McKeuna Lone &
“Auowiuce LLP

AST

Issue No, 3
representation to Plaintiff.
Issue No. 4

Plaintiff.

(3"° ano 4™ Causes OF ACTION - FALSE REPRESENTATION & INTENTIONAL TORT),

Plaintiffs’ third cause of action for False Representation fail as a matter of law
because there is insufficient evidence showing that Defendant made any such

Plaintiffs’ fourth cause of action for Intentional Tort is without merit because there
is insufficient evidence shawing that Defendant had any special relationship with

11. Like the Complaint, Plaintiffs’ responses to
defendants’ standard G.O, 129 Interrogatories
fail to set forth any evidence supporting his
claims against Ford for false representation or
intentional tort.

12. In response to Friction Interrogatory No 8,
Plaintiffs provide no facts supporting a
contention that Ford made misreprescntations
to him in his response to Friction Interrogatory
No. 8.

13. Plaintif('also admits in response to Hriction
Interrogatory No. 14 that he was not aware and
did not read any bulletins, newsletters or

containing friction products or asbestos-related
health hazards issued by any friction
manufacturer, distributor or seller.

14. Ford's Special Interrogatory Nos. 1-6, 17-
19, 43 and 72-74, Ford’s Document Production
Request No. 11, and Judicial Council Form
Interrogatory (“Form Interrogatory”) No. 17.1
for Request for Admissions Nos. 31, 32, 39-41
and 43 called upon Plaintiffs to provide all
facts and identify all witnesses and documents
which support their claim of false
representation,

15. In their response to Ford’s Special
Interrogatory Nos. 1-6, 17-19, 43 and 72-74,
Plaintiffs sct out unsupported allegations

4

11. Exhibit C, Plaintiffs’ Answers to Standard
Interrogatories, Set One; Exhibit D, Plaintiffs”
Answers to Standard Friction Interrogatories;
Exhibit E, Plaintiffs’ Supplemental Responses to
Standard Interrogatories, Sct One, attached to
Jackson Decl.

12. Exhibit D, Plaintiffs’ Answers to Standard
Friction Interrogatorics, Interrogatory No. 8 and
Response, pp.10:28-12:12, attached io Jackson
Decl.

13. Exhibit D, Plaintiffs’ Answers to Standard
Friction Interrogatories, Interrogatory No. 14 and
Response, p.15:13-31, attached to Jackson Decl.

14, Exhibit F, Plaintiffs’ Responses to Ford's
Specially Prepared Interrogatories, Set One, pp.
3 9:4-26, 17:1-13, 25:22-27:13; Exhibit G,
Plaintiffs’ Responses to Ford's Request for
Admissions, pp. 9:19-10:2, 11:6-19; Exhibit H,
Plaintiffs’ Responses to Ford's Request for
Production of Documents, p.8:3-17; Exhibit
Plaintiffs’ Responses to Fords Form
Interrogatories, pp. 4:20-5:2, attached to Jackson
Decl.

intiffs’ Responses to Ford’s
Specially Prepared Interogetories, Set One p.
26, V7:1-13, 25:22-27:13; Exhibit G,

DEFENDANT FORD MOTOR COMPANY'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT. OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES.28

Me Kes Lowe
SAN Francisca,

without identification of any specific
representations made to him, or detailing when
and what products or actions the alleged
representations applied.

16. Plaintiffs fail to provide any specific facts
that show a misrepresentation by Defendant to
Mr. Boudreaux which caused him to become
exposed to asbestos, which contributed to his
alleged development of mesothelioma.

17. Ford’s Special Interrogatory Nos. 1-6, 17-
19, 75-77 and Form Interropatory No. 17.1 for
Request for Admission No. 42 called upon
Plaintiffs to provide all facts and identity all
witnesses and documents which support their
claim of intentional tort.

18. But Plaintiffs’ responses fail to support
their claims.

19, Nowhere in their responses do Plaintiffs
point to any specific Intentional Tort
committed by Ford against Mr. Boudreaux.

Plaintiffs’ Responses to Ford's Request for
Admissions, pp. 9:19-10:2, 11:6-19: Exhibit H,
Request for
tion of Documents, p.8:3-17; Exhibit J,
Plaintiffs’ Responses to Ford’s Form
Interrogatories, pp. 4:20-5:2.

16. Exhibit F, Plaintiffs’ Responses to Ford’s
Specially Prepared Interrogatories, Set One, pp.
3:2-6:5, 9:4-26, 17:1-13, 25:22-27:13; Exhibit G,
Plaintiffs’ Responses to Ford’s Request for
Admissions, pp. 9:19-10:2, 11:6-19; Exhibit H,
Plaintiffs’ Responses to Ford’s Request for
Production of Documents, p.8:3-17; Exhibit 1,
Plaintiffs’ Responses to Ford's Form
Interrogatories, pp. 4:20-5:2.

17. Exhibit F, Plaintiffs’ Responses to Ford’s
Specially Prepared Interrogatories, Set One, pp.
3:3-6:5, 9:4-26, 27:14-29:17; Exhibit G,
Plaintiffs’ Responses to Ford’s Request for
Admissions, p.11:20-23; Exhibit I, Plaintiffs’
Responses to Ford’s Form Interrogatories, pp.
4:20-5:22.

18. Exhibit F, Plaintiffs’ Responses to Ford's
Specially Prepared Interrogatories, Set One, pp.
3:3-6:5, 9:4-26, 27:14-29:17: Exhibit G,
Responses to Ford’s Request for
Admissions, p.11:20-23; Exhibit |, Plaintiffs’
Responses to Ford's Form Interrogatories, pp.
4:20-5:2.

19. Exhibit F, Plaintiffs’ Responses to Ford's
Specially Prepared Interrogatories, Set One, pp.
3:3-6:5, 9:4-26, 27:14-29:17; Exhibit G,
Plaintiffs’ Responses to Ford’s Request for
Admissions, p.11:20-23, Exhibit |, Plaintiffs’
Responses to Ford’s Form Interrogatories, pp.
4:20-5:2.

As To:

Issue No, 5

Plaintiffs’ fifth cause of action for Breach of Warranties fails as a matter of law,

since Plaintiffs are unable to establish the necessary elements.

(STH CAUSE OF ACTION -

20, Plaintiffs’ claims do not arise out of any

BREACH OF WARRANTIES}

20. Exhibit A, Plaintiffs’ Complaint; Exhibit C,

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DEFENDANT FORD MOTOR COMPANY'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN’ SU

MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES.28

MeKanewa Lose de
‘Aemminee LLP

commercial relationship with Ford.

21. Plaintiffs cannot show any commercial
buyer-seller relationship with Ford. Nowhere
in their responses to Ford’s written discovery is
there any evidence supporting their Breach of
Warranty claim. .

AsTo:

Plaintiffs’ Answers to Standard Interrogatories,
Set One; Exhibit D, Plaintifls” Answers to
Standard Friction. Interrogatories; Exhibit E,
Plaintiffs’ Supplemental Responses to Standard
Interrogatories, Set One; Exhibit F, Plaintiffs’
Responses to Ford’s Specially Prepared
Interrogatories, Set One; Exhibit G, Plaintiffs’
Responses to Ford’s Request for Admissions;
Exhibit H, Plaintiff’ Responses to Ford's
Request for Production of Documents; Exhibit
Plaintiffs’ Responses to Ford's Form
Interrogatories; Exhibit J, Deposition of Charles
Boudreaux taken April 30, 2007, and May 2-3,
2007, attached to Jackson Decl.

21. Exhibit F, Plaintiffs’ Responses to Ford's
Specially Prepared Interrogatories, Set One,
Interrogatories and Responses Nos. 80-83, pp.
30:18-32:14.

IssuE No.6 Deborah Boudreaux’s claim for loss of consortium is without merit, as this cause
of action is derivative of Charles Boudreaux’s personal injury claims, which

cannot succeed.

(71H CAUSE OF ACTION-

22. Mrs. Boudreaux’s cause of action for loss
of consortium is derivative of and dependent
upon Mr. Boudreaux’s personaf injury claims,
and since the personal injury claims lack merit,
Mrs. Boudreaux’s loss of consortium claim also
lacks merit, as a matter of law.

Loss OF Consortium)
22. Lixhibit A, Plaintiffs” Complaint; Exhibit C,

Plaintiffs’ Answers to Standard Interrogatories,
Set One; Exhibit D, Plaintiffs’ Answers to
Standard Friction interrogatories; Exhibit #,
Plaintiffs’ Supplemental Responses to Standard
Interrogatories, Set One; Exhibit F, Plaintiffs’
Responses to Ford’s Specially Prepared
Interrogatories, Set One; Exhibit G, Plaintifi’”
Responses to Ford’s Request for Admissions;
Exhibit H, Plaintiffs’ Responses to Ford’s
Request for Production of Documents; Exhibit |,
Plaintiffs” Responses to Ford's Form
Interrogatories; Exhibit J, Deposition of Charles
Boudreaux taken April 30, 2007, and May 2-3,
2007; Exhibit K, excerpt from Pathology of
Asbestos-Associated Diseases, 2” Edition,
Roggli, Oury, and Sporn, 2004, pp.106-107,
attached to Jackson Dec!

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DEFENDANT FORD ROTOR COMPANY'S SEPARATE STATEMENT OF UNDISEUTED MATERIAL FACTS IN SUPPORT OF _ |
MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUESMeKesa Lone &
Bapeiace LL
‘San Peaneisce

As To:

Issue No. 7

PLAINTIFFS’ CLAIM FOR PUNITIVE DAMAGES IS WITHOUT MERIT BECAUSE THEY,

HAVE NOT SET FORTH “CLEAR AND CONVINCING” OF ANY ACT OF “MALICE,
OPPRESSION, OR FRAUD” COMMITTED BY DEFENDANT.

(Claim For Punitive Damages)

23. Plaintiffs provide no “clear and convincing”
evidence, beyond conclusory allegations they
set forth in their Complaint and repeated in
their discovery responses, that even closely
approaches the required standard required to
show that this Defendant committed a tort
through “malice, oppression, or fraud.”

24, Ford’s Special Inlerrogatory Nos. 12-16
asks Plaintiffs, in regard to the claim for
punitive damages, whether they contend lord is
liable to him for punitive damages and, if so, to
state all facts and identify all documents,
persons with knowledge, and all
communications supporting this claim.

25. In their responses, Plaintiffs merely repeat
the same allegations as noted above, and set
forth in response to Interrogatory No. 2 (which
have been detailed above).

26. Plaintiffs also make conclusory statements
that Ford “had a duty to warn and/or properly
instruct users ...of the asbestos-containing dust
hazard”, gave no warnings to Mr, Boudreaux
and subjected him to “cruel and unjust
hardships in conscious disregard for [his] rights
and safety”,

27. In an attempt to support their claims,
Plaintiffs reference their State of the Art

23, Exhibit A, Plaintiffs’ Complaint; Exhibit C,
Plaintiffs’ Answers to Standard Interrogatories,
Set One; Exhibit D, Plaintiffs” Answers to
Standard Friction Interrogatories; Exhibit E,
Plaintiffs’ Supplemental Responses to Standard
Interrogatories, Set One; Exhibit F, Plaintiffs’
Responses to Ford’s Specially Prepared
Jntesrogatories, Set One; Exhibit G, Plaintiffs’
Responses to Ford’s Request for Admissions;
Exhibit H, Plaintiffs’ Responses to Fords
Request for Production of Documents; Exhibit |,
Plaintiffs’ Responses to Ford’s Form
Interrogatories; Exhibit J, Deposition of Charles
Boudreaux taken April 30, 2007, and May 2-3,
2007, attached to Jackson Decl.

24. Exhibit F, Plaintiffs’ Responses to Ford’s
Specially Prepared interrogatories, Set One,
pp.7:20-9:3, attached to Jackson Decl.

25. Exhibit F, Plaintifis’ Responses to Ford’s
Specially Prepared Interrogatories, Set One,
pp.3:6-4:17, 7:20-9:3, attached to Jackson Decl.

26. Exhibit F, Plaintiffs’ Responses to Ford’s
Specially Prepared Interrogatories, Set One,
pp.3:6-4:17, 7:20-8:3, attached to Jackson Decl.

27. Exhibit F, Plaintiffs’ Responses to Ford’s
Specially Prepared Interrogatories, Set One,

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DEFENDANT FORD MOTOR COMPANY'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES1 | expert's book, “Ashestos: Medical and Legal pp.3:6-4:17, 7:20-9:3, attached to Jackson Decl.
Aspects” without pointing to any specilic
2 | citation and various codes and regulations.
3
28. Plaintiffs do not explain how these 28. Exhibit F, Plaintiffs’ Responses to Ford’s
4 | documents apply to any Ford vehicles he Specially Prepared Interrogatories, Set One,
worked upon or how Ford acted in a malicious, _pp.3:6-4:17, 7:20-9:3, attached to Jackson Decl,
5 |_oppressive, or fraudulent manner.
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71 Dated: October 11, 2007 MCKENNA LONG & ALDRIDGE LLP
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FORD MOTOR COMPANY
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MeKENWA Lone & =8.
aitgntiarter |) DEFENDANT FORD MOTOR COMPANY'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS INSUPPORT OF
Tanenscnes MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES