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

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Stephen J. Foley. Esq.. SBN 220752
Lori A. Cataldo, Esq. SBN 218533
Melissa M. Corica, Esq. SBN 260905
Foley & Mansfield P.L.L.P.

1111 Broadway, 10" Floor

Oakland, CA. 94607

Telephone: (510) 590-9500
Facsimile: (510) 590-9595

Attorneys for Defendant
STA-RITE INDUSTRIES, LLC

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

JUN 23 2010

Clerk of the Court
BY: RAYMOND K. WONG
Deputy Clerk

SUPERIOR COURT OF CALIFORNIA.

COUNTY OF SAN FRANCISCO
LOUIS CASTAGNA, ) Case No. CGC-07-274230
)
Plaintiff, ) “Asbestos-Related Case”
)
v. } DEFENDANT STA-RITE INDUSTRIES,
LLC’S MEMORANDUM OF POINTS AND
ASBESTOS DEFENDANTS (BP), et al., } AUTHORITIES IN SUPPORT OF ITS
Defendants. ) MOTION FOR SUMMARY JUDGMENT
} Date: September 9, 2010
) Time: 9:30 a.m,
j Dept: 220
j Judge: Hon. Harold E. Kahn
) Complaint Filed: August 28, 2007
j Trial Date: October 12, 2010
INTRODUCTION

Plaintiff LOUIS CASTAGNA (hereinafter “Plaintiff’), who alleges to have asbestosis due to

exposure to asbestos-containing products, has sued the wrong defendant for his alleged exposure to

Berkeley Jet Drive pumps used in jet boats. Defendant STA-RITE INDUSTRIES, LLC (“Sta-Rite”) has

never had anything whatsoever to do with Berkeley Jet Drive pumps. Furthermore, Plaintiff has yet to

proffer competent evidence identifying a single jobsite, employer, or instance where he was exposed to

asbestos or asbestos-containing products manufactured, distributed, supplied, installed or disturbed by

Sta-Rite. Sta-Rite respectfully requests that the Court grant its motion for summary judgment and

dismiss it from this case.

STA-RITE INDUSTRIES, LLC’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENTcee DOD A ee BH

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Th. STATEMENT OF UNDISPUTED MATERIAL FACTS
Plaintiff's case is based on allegations that he was exposed to asbestos as a result of his work

with and around asbestos and asbestos-containing products.

A. PLAINTIFF’S COMPLAINT IS FACTUALLY DEVOID OF ANY FACTUAL
ALLEGATIONS OF EXPOSURE TO RESPIRABLE ASBESTOS FIBERS
ATTRIBUTABLE TO STA-RITE

On August 28, 2007, Plaintiff filed a complaint for personal injury in San Francisco Superior
Court, case number CGC-07-274230. (Separate Statement of Undisputed Material Facts in Support of
Defendant Sta-Rite Industries LLC’s Motion for Summary Judgment “SUMF,” Fact No. 1). Therein,
Castagna alleges he was exposed to asbestos from products or services provided by Defendants during
his career as a wiper (the most junior crewmember in the engine room of a ship), oiler (a worker whose
main job is to oil machinery), stearnfitter, mechanic and pipefitter at various refineries, commercial,
residential and industrial locations and aboard various ships in California, Washington and Arizona from
1967 to 1996. (SUMF No. 2.) Plaintiff's complaint is devoid of a single factual allegation as to Sta-Rite
or Berkeley pumps. (SUMF No. 3.) Plaintiff's complaint merely makes generic allegations as to all

Defendants collectively.

B. PLAINTIFF’S RESPONSES TO STANDARD ASBESTOS INTERROGATORIES
FAIL TO MAKE ANY COMPETENT FACTUAL ALLEGATIONS AS TO STA-
RITE

Plaintiff served his responses to general order interrogatories, set one, on or about July 9, 2007.
Plaintiffs responses fail to identify Sta-Rite or Berkeley pumps in those responses. (SUMF No. 4).
Plaintiff served his responses to general order interrogatories, set two, on or about May 16, 2008.

Plaintiffs responses fail to identify Sta-Rite or Berkeley pumps in those responses. (SUMF No. 5.)

Cc. PLAINTIFF’S RESPONSES TO DISCOVERY ARE FACTUALLY DEVOID
AND FAIL TO CREATE A TRIABLE ISSUE OF MATERIAL FACT AS TO
ANY OF HIS CAUSES OF ACTION AGAINST STA-RITE

On October 6, 2008, Sta-Rite propounded specially prepared interrogatories on Plaintiff Louis
Castagna asking him to identify each fact in support of his contention that Sta-Rite is liable to him as
alleged in his Complaint, and to provide the basis for these contentions, specifically noting the identity

of the product involved and how, when and where the exposure occurred. (SUMF, Fact No. 6)

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STA-RITE INDUSTRIES, LLC’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENTcee DOD A ee BH

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On December 1, 2008, Plaintiff served responses to Sta-Rite’s special interrogatories contending
that in the late 1970s to early 1980s, Plaintiff swapped out one Berkley Pump Company jet pump 3-4
times on his 16 or 17 foot ski boat. Plaintiffalso opened the Berkley Pump Company pump and
performed repairs such as changing the impellers (rotating components of a pump made of iron, steel,
bronze, brass, aluminum or plastic) with Berkley Pump Company replacement parts, which required him
to disturb original asbestos-containing packing and gland seals. (SUMF, Fact No. 7). Plaintiff signed a
verification for these responses on December 17, 2008. (SUMF, Fact No. 8). Plaintiff produced no

evidence to support his allegations. (SUMF, Fact No. 9).

D. PLAINTIFF COULD NOT IDENTIFY STA-RITE AS A SOURCE OF HIS
EXPOSURE

Castagna was deposed over a period of eighteen days, June 17, 2008; September 10-12, 24-25,
2008; March 2-3; 5, 2009; April 7, 9, 2009; September 14, 16, 2009; December 15, 17, 2009; January
27, 29, 2010; and February 19, 2010. (SUMF, Fact No. 10). Castagna testified that he does not recall
the name Sta-Rite Industries. (SUMF, Fact No. 11). Castagna testified that he does not recall products
of services associated with the name Sta-Rite Industries. (SUMF, Fact No. 12).

Castagna testified that he associated the name Berkeley with pumps. (SUMF, Fact No. 13).
Castagna testified that the only Berkeley pump he recalls seeing or working on was on one jet boat in
the 1970s on Bethel Island, California. (SUMF, Fact No. 14). The boat was owned by Plaintiff's friend,
James Saathoff, and was five or six years old when Castagna first worked on it. (SUMF, Fact No. 15).
The Berkeley pump was the jet boat’s main propulsion, was a turbine pump run by a gasoline engine,
had a six-inch impeller and had a mechanical shaft seal. (SUMF, Fact No. 16). Castagna and Saathoff
worked on the Berkeley pump aboard the jet boat, which was original to the jet boat, six to cight times,
replacing the impellers. (SUMF, Fact No. 17). Castagna helped to replace the original impeller on the
pump with “Berkeley” impellers purchased from a Berkeley pump supply outlet. (SUMF, Fact No. 18).
While working on the pump, Castagna helped change composite-type Berkeley gaskets associated with
the impellers. (SUMF, Fact No. 19). Castagna does know if any of the components of the Berkeley
pump contained asbestos. (SUMF, Fact No. 20), Castagna cannot recall any other locations he saw a

Berkeley pump and has never worked on any other Berkeley pump. (SUMF, Fact No. 21).

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STA-RITE INDUSTRIES, LLC’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENTcee DOD A ee BH

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Because Sta-Rite has no liability for Berkeley jet dive pumps as set forth below and because the
alleged components he worked with contained no asbestos, Sta-Rite’s motion for summary judgment

should be granted.

E. STA-RITE DOES NOT HAVE LIABILITY FOR BERKELEY JET DRIVEN
PUMPS

Defendant Sta-Rite has no liability for Berkeley Jet Drive pumps. (SUMF Nos. 22 to 25.)
Defendant manufactures water (not jet boat) pumps. In December, 1986, Sta-Rite acquired from
Transamerica Delaval, Inc. certain assets relating to a portion of the former Berkeley Pump Company,
namely, water and irrigation pumps. As part of this transaction, Sta-Rite did not acquire any assets or
liabilities of the separate Berkeley Jet Drive Division, which was responsible for the Berkeley jet pumps
used in jet boats and marine applications. Those assets and liabilities were retained by the selling
companies,

In fact, by July 6, 1987 Asset Purchase Agreement, Transamerica Delaval, Inc. (by then known
as IMO Delaval, Inc.) and Tait, Inc. (the “Selling Companies”), sold the Berkeley Jet Drive business to
Hardin Marine. (SUMF Nos, 22 to 25.) Hardin Marine apparently did not assume liabilities for
products manufactured prior to the closing date, which liabilities were retained by the Selling
Companies. (See Asset Purchase Agreement attached as Exhibit H to the Declaration of Melissa M.
Corica at Paragraph 7.15.B [“Sellers (IMO Delaval, Inc. and Tait, Inc.) shall indemnify, defend and hold
Buyer (Hardin Marine) harmless against all claims ... which . . . arise or result from the Sellers”
Products (defined in Paragraph 7.15.A as products manufactured prior to the closing date)”]). Sta-Rite

is not the proper party in this case and should be dismissed.

F. NEITHER THE IMPELLER, GASKET, NOR MECHANICAL SEAL
ASSOCIATED WITH THE BERKELEY JET DRIVEN CONTAIN ASBESTOS

Additionally, Plaintiff has failed to provide sufficient, admissible evidence of exposure to any
asbestos-containing component of a Berkeley or Sta-Rite pump for which Sta-Rite is liable. Plaintiff
testified that he changed impellers on the jet pump. (SUMF, Fact No. 18). Impellers are rotating
components of a pump and are made of iron, steel, bronze, brass, aliminum or plastic. (SUMF, Fact
No. 26). Plaintiff testified that the Berkeley pump had a mechanical shaft seal. (SUMF, Fact No. 16).

This seal did not contain asbestos. (SUMF, Fact No, 27). Plaintiff testified that he replaced a composite

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STA-RITE INDUSTRIES, LLC’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENTcee DOD A ee BH

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type gasket in association with the impeller on the Berkeley jet pump. (SUMF, Fact No. 19). The
gasket, a bowl gasket, was comprised of vegetable fiber, velumoid, and did not contain asbestos.
(SUMF, Fact No. 28).

il. LEGAL ARGUMENT

A. Sta-Rite is the Wrong Defendant, Has No Liabilities for the Berkeley Jet Drive Business
and Should Be Dismissed from this Case.

A motion for summary judgment shall be granted if there is no triable issue as to any material
fact and the record establishes that, as a matter of law, plaintiff cannot prevail on a cause of action.
C.C.P. § 437c(a); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.

In the present case, Plaintiff's only allegation against Sta-Rite relates to his alleged exposure to
jet pumps used in boats, i.e., the separate Berkeley Jet Drive business. Plaintiff testified that the only
Berkeley pump he worked with or around during his entire career was one pump on a jet boat, a
Berkeley marine-use jet boat pumps. Defendant Sta-Rite has no liability for Berkeley Jet Drive Division
of the former Berkeley Pump Company. In July 1987, Transamerica Delaval, Inc.. by then known as
IMO Delaval, Inc., sold the Berkeley Jet Drive business to Hardin Marine - not to Sta-Rite. Defendant
Sta-Rite never acquired the assets or liabilities for Berkeley jet driven pumps, Hardin Marine did. Sta-
Rite is the wrong party to this action and should therefore be dismissed with prejudice from this case

based on the facts presented.

B. Plaintiff Has Not Proven That Castagna Was Exposed to Any Respirable Asbestos Due to
the Products or Activities of Sta-Rite.

Plaintiff has provided no credible evidence of exposure to a Sta-Rite product. Furthermore,
Plaintiff has not proven he was exposed to asbestos from either a Sta-Rite or Berkeley pump. Castagna
testified that he worked on one Berkeley jet pump with a mechanical seal on one jet boat in the 1970s
six to eight times, replacing the original impeller on the pump with Berkeley impellers purchased from a
Berkeley pump supply outlet, Castagna testified that he does know if any of the components of the
Berkeley pump contain asbestos. Moreover, the mechanical seal associated with the Berkeley pump did
not contain asbestos. Castagna also helped change composite-type Berkeley gaskets associated with the
impellers, The gasket, a bowl gasket, was comprised of vegetable fiber, velumoid, and did not contain

asbestos.

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STA-RITE INDUSTRIES, LLC’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENTcee DOD A ee BH

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Plaintiff has no evidence that he was exposed to asbestos for with Defendant is liable and,
therefore, Defendant’s Motion for Summary Judgment should be granted.
IV. CONCLUSION
Sta-Rite Industries, LLC is entitled to summary judgment because Sta-Rite has no liability for
the Berkeley Jet Drive pumps to which plaintiff claims exposure. In addition, Plaintiff cannot establish
that he was exposed to an asbestos-containing Sta-Rite product or Betkley pump. Therefore, Sta-Rite
respectfully requests that this Honorable Court grant its Motion for Summary Judgment on all counts

alleged against it.

Dated: June 23, 2010 FOLEY & MANSFIELD, P.L.L.P.

Stephen J, Foley, Esq.
Lori A. Cataldo, Esq.
Melissa M. Corica, Esq.
Attorneys for Defendant

STA-RITE INDUSTRIES, LLC

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STA-RITE INDUSTRIES, LLC’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT