On June 05, 2007 a Party Statement was filed involving a dispute between Tobey, Charles, and Abhi-Crockett, Inc., Albay Construction Company, All Asbestos Defendants-See Attached Documents, Allis-Chalmers Corporation Product Libility Trust, Asbestos Corporation Limited, Asbestos Corporation Ltd., Asbestos Defendants, A.W. Chesterton Company, Bayer Cropscience Inc., Bayer Cropscience, Inc., Successor To Amchem, Bechtel Corporation, Bucyrus International Inc, Cbs Corporation, A Delaware Corporation,, C.C. Moore & Co. Engineers, Cheveron Products Company, Chevron U.S.A. Inc., Chrysler Llc, Coltec Industries, Inc., Consolidated Insulation, Inc., Crown Cork & Seal Company, Inc., Csk Auto, Inc., Dillingham Construction N.A., Inc., Does 1-8500, Douglass Insulation Company, Inc., Durabla Manufacturing Company, Inc., E.I. Du Pont De Nemours And Company, Fluor Corporation, Foley-Pmi, Inc, Foley-Pmi, Inc., Ford Motor Company, Foster Wheeler Llc, Garlock Sealing Technologies, Llc, General Dynamics Corporation, General Electric Company, General Motors Corporation, Goodloe E. Moore, Inc., Hanson Permanente Cement, Inc., Honeywell International Inc.,Fka Alliedsignal,Inc., Hopeman Brothers, Inc., Intricon Corporation, J.T. Thorpe & Son, Inc., Kaiser Gypsum Company, Inc., Lamons Gasket Company, Metalclad Insulation Corporation, Metropolitan Life Insurance Company, Occidental Chemical Corporation, Oscar E. Erickson, Inc., Owens-Illinois, Inc., Pacific Gas And Electric Company, Parker-Hannifin Corp., Plant Insulation Company, Quintec Industries, Inc., Riley Power Inc., Riley Power, Inc., Santa Fe Braun, Inc., Scott Co. Of California, Sequoia Ventures Inc., Shell Oil Company, S.T.M. Automotive, Stm Automotive, Inc., The Dow Chemical Company, The Goodyear Tire & Rubber Company, The Lunkenheimer Company, Thermon Manufacturing Co., Thomas Dee Engineering Company, Unocal Corporation, Waldron Duffy Inc, Zurn Industries, Llc,, for civil in the District Court of San Francisco County.
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28 FACKSON & WALLACE mp SAN FRANCISCO JOHN R. WALLACE, State Bar No. 85709 JOHN J. MURRAY, State Bar No. 49671 JACKSON & WALLACE LLP ELECTRONICALLY 55 Francisco Street, 6th Floor San Francisco, CA 94133 F ILE D Tel: 415,982.6300 Superior Court of California, Fax: 415.982.6700 County of San Francisco SEP 28 2009 Attorneys for Defendant GORDON PARK-LI, Clerk GOODLOE E. MOORE, INCORPORATED BY: VANESSA wy ty Clerk eputy Cler IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO CHARLES TOBEY, Case No. CGC-07-274226 Plaintiff, SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF MOTION OF GOODLOE E. MOORE, v. INCORPORATED, FOR SUMMARY ADJUDICATION ASBESTOS DEFENDANTS (B*P), DATE: December 11, 2009 TIME: 9:30 a.m. Defendants. DEPT: 302 JUDGE: Hon. Charlene Walter Woolard TRIAL DATE: January 19, 2010 (Brayton Group 513) ACTION FILED: December 19, 2005 Pursuant to Code of Civil Procedure section 437c(b), Defendant Goodloe E. Moore, Incorporated (hereinafter “Moore”) submits this separate statement of undisputed material facts in support of its motion for summary judgment: i Issue One: Summary Adjudication of Plaintiff's Claim for False Representation is Proper, As Plaintiff Cannot Establish the Requisite Elements. UNDISPUTED MATERIAL FACTS SUPPORTING EVIDENCE 1, On June 5, 2007, Plaintiff filed his 1, Declaration of John J. Murray; Exhibit “A”. Complaint for Personal Injury - Asbestos against various defendants. 1783217 MOORE’S SEPARATED STATEMENT OF UNDISPUTED FACTS28 JACaSON € WALLACE uP SAN FRANCISCO 2. The causes of action specific to Moore are the First Cause of Action for Negligence, the Second Cause of Action for Strict Liability and the Third Cause of Action for False Representation. Plaintiff also seeks punitive damages in each cause of action, 3. Plaintiff's complaint alleges no specific facts concerning his cause of action for false representation against Moore. 4. Moore filed its Answer to Complaint on August 22, 2007. 5. Plaintiff's deposition was taken in five sessions, on February 10, 11 and 12, 2009, and on April 8 and 9, 2009. 6. Plaintiff testified he had never heard of Goodloe E. Moore, Incorporated. 7. Plaintiff testified that he did not recall whether he had ever seen the name Goodloe E. Moore, Incorporated, on any preduct he had ever used. 8. Plaintiff testified that he did not know whether he had ever spoken with a person who identified him or herself as an employee of Goodloe E. Moore, Incorporated. 9. Plaintiff testified that he did not recall reading anything that at the time he believed was a writing from Goodloe E. Moore, Incorporated. 10. Plaintiff testified that he could not think of any persons who might assist him in providing any information about Goodloe E. Moore, Incorporated. 11. Plaintiff testified that he was not aware of any documenis that might be of assistance to him in providing any information about Goodloe E. Moore, Incorporated. 2753217 2. Declaration of John J. Murray; Exhibit “A”. 3. Declaration of John J. Murray; Exhibit “A”. 4, Declaration of John J. Murray; Exhibit “B”. 5. Declaration of John J. Murray; Deposition of Charles Tobey, Exhibit “C”. 6. Declaration of John J. Murray; Exhibit “C” (RT 1134:19-22 and 1135:5). 7. Declaration of John J. Murray; Exhibit “C” (RT 1135:7-9 and 11). 8. Declaration of John J. Murray; Exhibit “C” (RT 1135:13-15 and 17). 9. Declaration of John J. Murray; Exhibit “C” (RT 1135:19-21 and 23). 10, Declaration of John J. Murray; Exhibit “C” (RT 1135:25 to 1136:2 and 1136:4). 11, Declaration of John J. Murray; Exhibit “C” (RT 1136:6-8 and 10). MOORB’S SEPARATED STATEMENT OF UNDISPUTED FACTSwa 0 © ND 10 ul 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JACKSON & WALLACE ue SAN FRANCISCO 12. Plaintiff testified that he did not know how Tuff-Bond glue came to be on the work sites where he used it. 13. Plaintiff testified that the company that supplied the Tuff-Bond glue to the work sites where he used it was his own employer. 14. Plaintiff testified that he did not know who supplied the Tuff-Bond glue to his employer. 15. Plaintiff testified that he did not know the name of the company that manufactured the Tuff-Bond glue. 16. Plaintiff testified that no one has told him that the Tuff-Bond glue contained asbestos. 17. Plaintiff testified that he did not have any independent information (separate from any information protected by the attorney-client privilege) that there was any asbestos in the Tuff-Bond glue that he used. 18. Moore served special interrogatories on Plaintiff requesting him to state each fact supporting his causes of action in the complaint, including claims for intentional or negligent misrepresentation, against Moore, and to state the basis for Plaintiff's assertions that Moore was liable to him for those claims 19. Plaintiff's responses failed to identify any witnesses, documents or other evidence supporting his claims for intentional or negligent misrepresentation against Moore. Instead, all of the responses simply made generalized assertions without foundation that did not pertain to Moore in any specific manner. 20. Moore served a request for production of documents on Plaintiff requesting him te produce each writing supporting the claims of liability made by Plaintiff against Moore, including any writing made by Moore pertaining to asbestos or to asbestos-containing products, or that shows that Moore knew of 1753217 12. Declaration of John J. Murray; Exhibit “C” (RT 1142:21-22, 1142:25-1143:3 and 1143:5). 13. Declaration of John J. Murray, Exhibit “C” (RT 1143:21-23 and 1144-2-3). 14, Declaration of John J. Murray; Exhibit “C” (RT 1144:5-6 and 8). 15. Declaration of John J. Murray; Exhibit “C” (RT 1144:10-11 and 13). 16. Declaration of John J. Murray; Exhibit “C” (RT 1144:15-16 and 21). 17. Declaration of John J. Murray; Exhibit “C” (RT 1144:23 to 1145:1 and 1145:7-19). 18. Declaration of John J. Murray; Exhibit “D”, Special Interrogatories Nos. 14 and 27. 19. Declaration of John J. Murray; Exhibit “E”, Responses to Special Interrogatories Nos. 14 and 27. 20. Declaration of John J. Murray; Exhibit “F”, Request for Production Nos. 2 and 16. MOORE'S SEPARATED STATEMENT OF UNDISPUTED FACTSoC we ND WH BF BW we = RN NM Se ee eB Be Be ee ee RSF SF © B® IY A HW BF BH SE SD 23 24 25 26 27 28 JACKSON & WALLACE ur SAN FRANCISCO dangerous propensities claimed about asbestos or asbestos containing products. 21. Plaintiff's responses failed to identify any specific documents supporting his claims for fraudulent misrepresentation against Moore. Instead, all of the responses simply made generalized assertions without foundation that did not pertain to Moore in any specific manner. 21. Declaration of John J. Murray; Exhibit “G”, Responses to Request for Production Nos. 2, and 16. I. Issue Two: Summary Adjudication of Plaintiffs’ Claim for Punitive Damages is Proper, As Plaintiff Cannot Establish That Moore Acted with the Malice, Fraud, or Oppression Necessary to Justify Invocation of Such Damages. UNDISPUTED MATERIAL FACTS 22. Plaintiffs’ complaint alleges ne specific facts showing that Moore’s actions were malicious, oppressive, or fraudulent so as to justify an award of punitive damages. 23. Moore served written interrogatories en, Plaintiff asking him to identify each fact supporting his claim that Moore is or ought to be liable in this action for punitive damages. 24. Plaintiff failed to provide any evidence that Moore ever acted in a malicious, oppressive, or fraudulent manner toward him. Instead, the response simply made generalized assertions without foundation that did not pertain to Moore in any specific manner. 25. Moore served a request for production of documents on Plaintiff asking him to identify each writing supporting his claim that Moore is or ought to be liable in this action for punitive damages. 26. Plaintiff failed to identify any documents in support of his claim that Moore acted in a malicious, oppressive, or fraudulent manner toward him. Instead, the response simply made generalized assertions without foundation that did not pertain to Moore in any specific manner. 1783217 SUPPORTING EVIDENCE 22. Declaration of John J. Murray; Exhibit “A” 23. Declaration of John J. Murray; Exhibit, “D”, Special Interrogatory No. 28. 24, Declaration of John J. Murray; Exhibit “E”, Response to Special Interrogatory No. 28, and to Special Interrogatory No. 2 as incorporated therein. 25. Declaration of John J. Murray; Exhibit, “PF”, Request for Production No. 26. 26. Declaration of John J. Murray; Exhibit “G", Response to Request for Production No. 26, and to Request for Production No. 2 as incorporated therein. MOORE’S SEPARATED STATEMENT OF UNDISPUTED FACTS28 Jacasan & Wasnnce up SAN FRANCISCO Dated: September 23, 2009 1753237 JACKSON & WALLACE LLP 5 MOORE’S SEPARATED STATEMENT OF UNDISPUTED FACTS