Motion,Ex Parte: GODOFREDO PIQUE VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al

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                                GABRIEL A. JACKSON, State Bar No. 98119
CATHERINE E. GOLDEN, State Bar No. 127694

CONSTANCE F. MORRISON, State Bar No. 185872 ELECTRONICALLY
JACKSON JENKINS RENSTROM LLP
55 Francisco Street, 6th Floor F ILE D
San Francisco, CA 94133 Superior Court of California,
Tel 415.9 82. 3600 County of San Francisco
Fax: 415.982.3700 AUG 30 2011
Clerk of the Court
Attormeys for Defendant BY: VANESSA WU
CUMMINS, INC. Deputy Clerk

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO

ROSITA PIQUE, as Wrongful Death Heir Case No. CGC-08-274659
and as Successor-in-Interest to

GODOFREDO PIQUE , Deceased; and SEPARATE STATEMENT OF

MARLENE SANCHEZ, GREGORY UNDISPUTED FACTS IN SUPPORT OF

PIQUE, FREDERICK. PIQUE, as Legal DEFENDANT CUMMINS, INC.'S

Heirs of GODOFREDO PIQUE , MOTION FOR SUMMARY JUDGMENT

Deceased, OR, IN THE ALTERNATIVE, SUMMARY
ADJUDICATION

Plaintiffs,
Date: November 10, 2011
v. Time: 9:30 a.m.

Dept: 220

DANA COMPANIES, LLC (FKA DANA Judge: Hon. Harold E. Kahn
CORPORATION), et al.
Trial Date: December 12, 2011
Defendants.
Action Filed: October 5, 2010

Pursuant to C.C.P. § 437c, defendant CUMMINS, INC. (hereinafter “CUMMINS”)
respectfully submits its Separate Statement of Undisputed Material Facts in support of its Motion

for Summary Judgment:

1

SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF DEFENDANT CUMMINS, INC/'S
MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATIONOo ce NI KR HW BRB Ww YD

NN KN N NN NR KN YS ee Be eB SB Be ee
oD A A BF YH NB SF DOB we NWN DH FWY = SF

I Issues One and Two: Summary Adjudication of Plaintiffs’ Claims for
Negligence (Survival/Wrongful Death) and Strict Liability
(Survival/Wrongful Death) is Proper Because They Cannot Establish the

Requisite Elements
MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE AND
MATERIAL FACTS SUPPORTING EVIDENCE
1. On May 8, 2008, Decedent Godofredo 1

Pique filed a Complaint for Personal Injuries,
in the San Francisco Superior Court, alleging
injury due to exposure to asbestos. Cummins
was not named as a Defendant. (Request for
Judicial Notice, Register of Actions.)
Godofredo Pique died on March 30, 2010 and
Plaintiffs, Decedent’s Successor-in-Interest and
Heirs, filed a First Amended Complaint for
Survival, Wrongful Death — Asbestos, alleging
the following causes of action against
Cummins: First, Negligence-Survival; Second,
Products Liability-Survival; and, Fifth,
Negligence-Wrongful Deathl; and, Sixth,
Products Liability-Wrongful Death, and
asserted a claim for punitive damages.
(Morrison Decl., Exh. A, First Amended
Complaint for Survival, Wrongful Death —
Asbestos.)

2. On November 5, 2010, Cummins filed its 2.
Answer of Defendant Cummins, Inc. to

Unverified First Amended Complaint for

Wrongful Death — Asbestos, denying the
allegations in the complaint and asserting its
affirmative defenses. (Morrison Decl., Exh. B,
Answer of Defendant Cummins, Inc. to

Unverified Complaint for Wrongful Death —
Asbestos.)

3. Although Cummins is informed and 3.
believes that Decedent was deposed in

connection with this matter prior to his death,
Cummins was not named in his Complaint, had
not been served, and did not appear at

Decedent’s deposition. (Morrison Decl., § 3.)

4. CUMMINS served written interrogatories 4.
on Plaintiff ROSITA PIQUE asking her to

identify the asbestos-containing CUMMINS
products to which she claimed Decedent was
exposed, to describe the work activity in which
Decedent was engaged in during the alleged
exposure and the dates thereof, and to “state all
facts” supporting Plaintiffs’ contentions 2

SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF DEFENDANT CUMMINS, INC.'S
MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATIONMOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE AND
MATERIAL FACTS SUPPORTING EVIDENCE
against CUMMINS. CUMMINS also asked
Plaintiff to describe the physical appearance of
any CUMMINS product which exposed
Decedent to asbestos, and to describe the
packaging of any such product, as well as to
identify any supervisors, co-workers, or other
persons and documents which supported her
claims against CUMMINS. (Morrison Decl.,
Exh. C, Defendant Cummins, Inc.’s First Set of
Specially Prepared Interrogatories, Special
Interrrogatory Nos. 2, 4, 6, 8, 12, 14, 18, 20,
22, 23.)

5. In her Response to Defendant Cummins 5.
Inc.’s Specially Prepared Interrogatories, Set
One, Plaintiff identified three work sites where
she alleged Decedent was exposed to asbestos
from CUMMINS products: the Dole Project in
the Phillipines; Sea-Land Services in Oakland;
and, United Parcel Service in Oakland.
Plaintiff also identified several former
supervisors or co-workers who allegedly had
knowledge of such exposure, but failed to
provide complete addresses or telephone
numbers for them. As to documents, Plaintiff
identified CUMMINS General Order 129
responses and documents produced by
CUMMINS which establish CUMMINS
involvement with asbestos-containing products
but do establish a link between Decedent and
said CUMMINS products. (Morrison Decl.,
Exh. D, Plaintiff Rosita Pique’s Response to
Defendant Cummins, Inc.’s First Set of
Specially Prepared Interrogatories, Response
No. 2.)

6. Plaintiff's responses also established that 6.
she had no information whereby she could
describe the physical appearance of any
CUMMINS product which exposed Decedent

to asbestos or describe the packaging of any

such product. (Morrison Decl., Exh. D,

Plaintiff Rosita Pique’s Response to Defendant
Cummins, Inc.’s First Set of Specially

Prepared Interrogatories, Response Nos. 22 &

23.)

7. As to Plaintiffs’ claim for punitive 7.
damages, Plaintiff's response indicated that she
had no factual support for said claims aside

from documents which generally set forth the
dangers of exposure to asbestos, but did not
describe any conduct by CUMMINS directed

SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF DEFENDANT CUMMINS, INC.'S
MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATIONCe YN DA A Bw BK

NN YY YW YN YY WY
oN BW AW F&F BW HY KF DS

MOVING PARTY’S UNDISPUTED
MATERIAL FACTS

towards Decedent. (Morrison Decl., Exh. C,
Defendant Cummins, Inc.’s First Set of
Specially Prepared Interrogatories, Special
Interrrogatory No. 24; Exh. D, Plaintiff Rosita
Pique’s Response to Defendant Cummins,
Inc.’s First Set of Specially Prepared
Interrogatories, Response No. 24.)

8. The deposition of Plaintiff ROSITA.
PIQUE, as Wrongful Death Heir and
Successor-in-Interest to Godofredo Pique, was
taken on April 7, 2011. At that time,

Plaintiff s stipulation was placed on the record
that her testimony would not be offered in any
deposition, trial or declaration as to the identity
of any product, manufacturer, supplier or
contractor who may have exposed Decedent to
asbestos and was made applicable to those
Defendants herein who were in attendance.
CUMMINS appearance was made by attorney
Keri Donohue of Jackson Jenkins Renstrom
LLP. (Morrison Decl., Exh. E, Deposition of
Rosita Pique, pp. 4:12-15, 40:21-41:17.)

9. On April 18 and 19, 2011, the depositions
of Plaintiffs FREDERICK PIQUE,
MARLENE SANCHEZ, and GREGORY
PIQUE were taken. In each instance, Plaintiffs
enter into the record a stipulation that their
testimony would not be offered in any
deposition, trial or declaration as to the identity
of any product, manufacturer, supplier or
contractor who may have exposed Decedent to
asbestos with the exception that Plaintiff
FREDRICK PIQUE’s stipulation specifically
excluded Decedent’s employment at East Bay
Regional Park — work site at which no
CUMMINS product was identified in Plaintiffs
written discovery. (Morrison Decl., Exh. F,
Deposition of Frederick Pique, pp. 6:4-7:14;
Exh. G, Deposition of Marlene Sanchez, pp.
6:16-17:21; Exh. H, Deposition of Gregory
Pique, pp. 13:18-14:1, Exh. D, Plaintiff Rosita
Pique’s Response to Defendant Cummins,
Inc.’s First Set of Specially Prepared
Interrogatories, Response No. 2.)

4

OPPOSING PARTY’S RESPONSE AND

SUPPORTING EVIDENCE

SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF DEFENDANT CUMMINS, INC.'S
MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATIONIl, Issue Three: Summary Adjudication of Plaintiffs’ Claim for Punitive
Damages is Proper, As They Cannot Establish That Cummins Acted with the
Malice, Fraud, or Oppression Necessary to Justify Invocation of Such

Damages.
MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE AND
MATERIAL FACTS SUPPORTING EVIDENCE
7. As to Plaintiffs’ claim for punitive 7.

damages, Plaintiff's response indicated that she
had no factual support for said claims aside
from documents which generally set forth the
dangers of exposure to asbestos, but did not
describe any conduct by CUMMINS directed
towards Decedent. (Morrison Decl., Exh. C,
Defendant Cummins, Inc.’s First Set of
Specially Prepared Interrogatories, Special
Interrrogatory No. 24; Exh. D, Plaintiff Rosita
Pique’s Response to Defendant Cummins,
Inc.’s First Set of Specially Prepared
Interrogatories, Response No. 24.)

Dated: August 25, 2011 JACKSON JENKINS RENSTROM LLP

By: /S/ CONSTANCE F. MORRISON’
CONSTANCE F. MORRISON
Attorneys for Defendant
CUMMINS, INC.

5

SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF DEFENDANT CUMMINS, INC.'S
MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION