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

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                                EUGENE BROWN, JR. (SBN; 079824)
AMEE A. MIKACICH (SBN: 146814)
MICHELLE M. CAMMARATA (SBN: 250258)

FILICE BROWN EASSA & MCLEOD LLP ELECTRONICALLY
1999 Harrison Street, Suite 1800 FILED
Oakland, California, 94612-3520 Superior Court of California,
Telephone: (310) 444-3131 County of San Francisco
Facsimile: (510) 839-794) JUN 23 2010
Attormeys for Defendant. : eclerk of the Court
OAKFABCO, INC. Deputy Clerk

SUPERIOR, COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO

LOUIS CASTAGNA, : CASE NO. CGC 07-274230

: MEMORANDUM OF POINTS AND
Plaintiff, AUTHORITIES IN SUPPORT OF MOTION
FOR SUMMARY JUDGMENT

ASBESTOS DEFENDANTS, Date: September 9, 2010
Time: 9:30 a.m.

Dept: 220

Judge: Hon. Harold Kahn
Defendants, ‘Trial Date. October 12,2010
Complaint Filed: June 6, 2007

COMES NOW, OAKFABCO, INC., (hereinafter referred to as “Oakfabco”) and hereby
submits this Memorandum of Points and Authorities in Support of Motion for Summary
Judgment.

L
STATEMENT OF FACTS

On June'6,.2007, Louis Castagna filed a Complaint for Personal Injuries, alleging
exposure to asbestos, against several defendants, including Oaktabco. Cakfabco appeared in this
action by way of Answer to the Complaint on July 24, 2007.

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY
FUDGMENTIn the Complaint, Plaintiffalleges that the defendants, including Oakfabeo, were involved.
in the manufacture, sale, supply, or installation of asbestos containing products. However, that
claim is erroneously stated against Qakfabco since Oakfabco came into existence in about 1987,
and has not manufactured. sold‘or supplied any products.

On May 30, 2008, counsel to Oakfabco propounded Special Interrogatories and a Request
for Production of Documents to Plaintiff, The interrogatories sought all information, pertaining to
Plaintiff's claims against Oakfabco. Plaintiff served his Responses to Oakfabco’s Discovery on
August 5,.2008..n Answers to Special Interrogatories, Plaintiff indicates that he worked on and
around Kewanee boilers at Shell Oil in Martinez, Standard Oil in Richmond, and Union Oil in
Rodeo. Plaintiff further claims that he personally worked on valves associated with Oakfabco
boilers. Plaintiff's claim that he worked on valves associated with Oakfabco is incorrect. As
indicated, Oakfaboo never manulactured any product, let alone asbestos containing, since it came
into existence in 1987. That notwithstanding, not only did Plaintiff fail to provide dates in which
he. worked on or around a Kewanee and/or Oakfabco boiler, but he alse failed to identifv.any
specific facts supporting his claims against Oakfabeo.

Plaintiffwas deposed over the course of several sessions in 2008, 2009, and 2010, due.to
the service of new defendants. At deposition, Plaintiff testified that in 1967-1970, he became
employed as a merchant marine for Interlake Steamship Company and Emerald Mining
Company, aboard several ships. In 1969, Plaintiff became employed asia steamfitter by numerous
contractors, including Pacific Mechanical Corporation, Albay Construction Company, and
Dillingham Construction, at several industrial, commercial, and institutional settings, ineluding
oil refineries, chemical plants, and power houses,

As to Oakfabco, Plaintiff testified that he did not werk with or around, or have exposure
to any product manufactured, supplied, and/or distributed by Oakfabeo and/or Kewanee Boiler

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Corporation. Plaintiffwas unable to identify any documents or witnesses that would provide any
information as to whether he worked with or around any Oakfabco or Kewanee product,
Accordingly, despite extensive discovery,-no evidence exists that Mr, Castagna was ever exposed

to asbestos as the result of a Kewanee boiler.

i,

LEGAL AUTHORITIES AND ARGUMENT

Ae SUMMARY JUDGMENT 1S STATUTORILY AUTHORIZED.
Code of Civil Procedure §437¢ provides the statutory basis for a. motion.for summary
judgment. Code of Civil Procedure section 437c states in pertinent part:

(a) Any party may move for summary judgement in any action or
proceeding if it is contended that the action has no merit.

(bj(1) The motion shall be supported by affidavits, declarations,
admissions; answers to. interrogatories, depositions, and matters of
which judicial notice shall or may be taken.

(c) The motion for summary judgment shall be eranted if all the
papers submitted show that there is no triable issue as io any
material fact and that the moving party is entitled to a judgement as
amatter of law.

{Emphasis Added]. |

Here, this motion is supported by the deposition testimony, of Plaintiff, Louis Castagna,
which is the type of evidence enumerated by Section 437c that “shall” support a. motion for
suminary judgment. Thus, the evidence produced by Oakfabco is authorized under the statute.

B THERE 18 NO EVIDENCE THAT OAKFABCO CAUSED OR CONTRIBUTED
TO PLAINTIFF'S ALLEGED EXPOSURE TO ASBESTOS.

As mentioned, Plaintiff filed the Complaint for Personal Injuries on June 6, 2007, alleging
several causes of action, based on négligence, strict product liability, failure to warn, breach of
warranties, fraud, and false representation. As to each cause of action, the element of causation

must be proved. In the context of asbestos related actions, Plaintiff must prove exposure. to an
-3- 04473 34004 MMT 6322871asbestos containing product for which Oakfabco and/or Kewanee Boiler Corporation are
responsible.

The court in Rutherford vs, Owens-Illinois, Inc., (1997) 16 Cal.4"° 953, analyzed the

element of causation in the context of asbestos related personal injury actions.and held ai page
982:

In the context of a cause of action for asbestos-related latent
injuries, the plaintiff must. first establish some threshold exposure
to the defendant's detective asbestos-containing products, and must
further establish in reasonable medical probability that a particular
exposure or series of exposures was a “legal cause” of his injury,
i... a substantial factor in bringing about the injury, In an asbestos-
related cancer case, the plaintiifneed not prove that fibers from the.
defendant's product were the ones. or among the ones, that actually
began the process of malignant cellular growth. Instead, the
plaintiff may meet the burden of proving that exposure to
defendant's product was a substantial factor causing the illness by
showing that'in reasonable medical probability it contributed to the
plaintiff or decedent's risk of developing cancer.

[Emphasis Added].

In McGonnell v. Kaiser Gypsum Company (2002) 98 Cal.App.4™ 1098, 1103, plaintiffs

alleged that their decedent developed lung cancer as a result of exposure to.defendant’s Kaiser
Gypsum’s asbestos containing prodticts, during the course of his employment as a plumber. At
deposition, the decedent testified that he has never heard of Kaiser Gypsum and had never
worked with or around others using Kaiser Gypsum products. Defendant Kaiser Gypsum moved
for summary judgment. Plaintiffs, in their opposition, offered invoices, that reflected the delivery
of Kaiser products to the decedent's employer three years before the decedent began working for

“The plaintiff must first.establish actual exposure to asbestos or
asbestos containing products for which the defendant is
responsible.

A. threshold issue in asbestos litigation is exposure to. the
defendant’s product. The plaintiff bears the burden of proof on this
issue, If there has been no exposure. there is no causation...”
{Emphasis added], |

-4. 04473 34004 MMT 6322571Aguilar vy. Atlantic Richfield Co. (2001) 25 Cal. 4® 926, 855 sets forth defendant's initial

burden of production ona motion for summary judgment:

“The defendant’ may, bul need not, present evidence that
conclusively. negates an element of the plaintiff's cause of
action. ‘The defendant may also present evidence that the
plaintiff does not possess, and cannot reasonably obtain, needed
evidence as through admissions by the plaintiff following
extensive discovery, to the effect, that he has discovered
nothing.” [Emphasis added].

In the case at ‘bar, Plaintiff was deposed over the course of several days. Plaintilf
described in detail, his work history, including the identities of products and equipment that he
worked with, on, or around, during the course of his career. Plaintiff was asked specifically about
whether-he worked with, or around, or was exposed to any product manufactured by Oakfabco
and/or Kewanee. In response, Plaintiff testified that he is unaware that he has ever worked with or
around or that he was exposed to any product manulactured, supplied, and/or distributed by
Oakfabco and Kewanee, Plaintiff ‘further testified that he is unaware of any documents or
witnesses that would provide more information as-to whether he worked with, or around, of was
exposed to any product manufactured, supplied, and/or distributed by Oakfabco and Kewanee.

By virtue of Plaintiff's deposition testimony, causation as to Oakfabco, cannot be

established. Therefore, Plaintiff cannot overcome the threshold issue of establishing exposure to

an Oakfabeo and/or a Kewanee product, as required under McGonnell.

c. PLAINTIFF'S RESPONSES TO DISCOVERY INDICATE THAT OAKFABCO
DID NOT CAUSE AND/OR CONTRIBUTE TO HIS EXPOSURE,

‘During the course of discovery, Plaintiff admitted that he did not perform work on or
around a product supplied by Oakfabco and/or Kewanee Boiler Corporation. Counsel to
Oakfabeo has diligently sought all information. through written discovery and deposition
testimony from Plaintiff regarding his claims against Oakfabco.

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The purpose of the Civil Discovery Act is to-allow the parties to litigation the right.to
obtain discovery, in order to prepare a claim and/or defense for trial. C.C.P. §2017.010 provides

in pertinent part that:

Any party may obtain discovery regarding any matter, not
privileged, that is relevant-to the subject matter involved in
the pending action or to the determination of any motion in
that. action, if the matter either is itself admissible in
evidence, or appears reasonably calculated ‘to lead to. the
discovery of admissible evidence.

In interpreting C.C.P. § 2017.01 the courtin Thoren vs. Johnston & Washer, (1972) 29

Cal. App. 3d 270, 274 held that:

One of the principal purposes of civil. discovery is to do
away with “the sporting theory of litigation-namely,
surprise. at the trial.” [Citations] The purpose is
accomplished by giving ‘greater assistance to the parties in
ascertaining the truth and in. checking and preventing
perjury,’ and by providing ‘an effective means of detecting
and exposing false, fraudulent and sham claims and
defenses.’ [Citations].

Pico Furniture Co. of Los Angeles v. Superior Court In and For Los Angeles County (1961) 56

Cal.2d 407; 420 recognized that:

The various vehicles of discovery provided by the
Discovery Act are. meant to be complementary of one
another. No-such vehiclecan be used to bar absolutely the
operation of anether.

Here, plaintiff initially answered the standard interrogatories, as well.as.a set of special
interrogatories. Code of Civil Procedure § 2030.010 provides:

An. interrogatory may relate to whether another party is
making a certain contention, orto the facts, witnesses, and
writings .on which a contention is based. An interrogatory is
not objectionable. because an answer to it involves an
opinion or contention that relates to fact-or the application
of law to fact, or would be-based on information obtained
or legal theories developed in anticipation of litigation or in
preparation for trial.

=O = 04473 34004 MMT 632237.1Here, counsel to Oakfabco propounded written discovery to Plaintiff in preparation for his
deposition, in order to narrowthe issues and facts which form the basis of his claims against
Oakfabco. In doing so, counsel to, Oakfabco, at deposition, conducted a cross-examination. in
order to verify the information that was included in the answers to interrogatories. When Plaintiff
was questioned about his claims against Oakfabco, he clarified his responses to written discovery,
by testifying that he did not work on, around, or was exposed to any product for-which Oakfabco
is liable.

Deposition testimony is ‘extremely. useful in discovery as it allows for, the opportunity. to
clarify not only the answers provided, but also the questions posed.

Where, as. here, however, there is a clear and unequivocal
admission by the-plaintiff, himself, in his deposition, made.
not once but twice, that Miss Andersen ‘did not apply any
force or anything,’ that there had been ‘no force applied’-
sworn evidentiary facts which plaintiff could not. possibly
‘withdraw without committing the grosses! perjury-we are
forced to conclude there is no substantial evidence of the
existence of a triable issue of fact.

And in McGonnell v. Kaiser Gypsum, Inc., (2002) 98 CA 4h 1400, 1104, the court held
that:

McGonnell’s deposition excerpt is precisely the type. of
evidence specified by Code of Civil Procedure § 437c¢, sub
(b), and our Supreme Court... as proper evidence to
support summary judgment motion . . .

MeGonnell was one of the best. persons, if not the best
person, to. identify the various products and substances to
which he had. to. identify the various products and

substances to. which. he had been exposed during his
employment.

Here, Plaintiff is the best person to know as to the. identities of those products that he
worked with or around, throughout his career. As mentioned, Plaintiff was asked specifically

about whether he worked with or around any product manufactured by Oakfabco and/or

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Kewanee. In response, Plaintiff testified that he had no knowledge.as to whether he worked with,
on, around, or was exposed to any product manufactured by Oakfabco and Kewanee.

Plaintiff's deposition testimony and answers to Oakfabco’s discovery clearly shows that
he has no knowledge that he was exposed to any products for which Oakfabeo is responsible.
Therefore, Plaintiff cannot overconie the threshold issue of establishing exposure to an Oakfabco

and/or a Kewanee product, as required under MeGonnell.

mm.
CONCLUSION

For-the foregoing reasons, Plaintiff does not claim exposure 10 asbestos asa result-of the
conduct of Oakfabco, Therefore, Oakfabeo, Inc. is entitled to summary judgment as a matter of

law.

Respectfully Submitted,
2010 FILICE BROWN EASSA & MCLEOD LLP

ov bolle Qenmunranal

EUGENE BROWN, JR.

AMEE A, MIKACICH
MICHELLE M. CAMMARATA
Attomeys for. Defendant
OAKFABCO, INC.

Dated: Junce*"

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