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

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                                JEREMY D. HUIE, ESQ. (SBN 191145)
BASSI, EDLIN, HUIE & BLUM LLP

351 California Street, Suite 200 ELECTRONICALLY

San Francisco, CA 94104

Telephone: (415) 397-9006 conde HP ria,

Facsimile: (415) 397-1339 County of San Francisco ’
AUG 31 2099

Attorneys for Defendant GORDON PARK-LI} Clerk

CARLISLE CORPORATION BY: CHRISTLE Den 1A ork

SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
CIVIL UNLIMITED JURISDICTION
GODOFREDO PIQUE, Case No. CGC 08 274659
DEFENDANT CARLISLE

CORPORATION’S MEMORANDUM
POINTS AND AUTHORITIES IN

Plaintiff,

vs.

ASBESTOS DEFENDANTS (BP) JUDGMENT
Date: November 13, 2009
Time: 9:30 a.m.
Dept.: 301

Trial Date: December 14, 2009
Complaint Filed: May 8, 2008

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OF

SUPPORT OF MOTION FOR SUMMARY

DEFENDANT CARLISLE CORPORATION'S MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION FOR SUMMARY JUDGMII. INTRODUCTION

Defendant CARLISLE CORPORATION (“Carlisle”) moves for summary judgment
against Plaintiff GODOFREDO PIQUE. On the undisputed facts, Plaintiff cannot prove the
element of causation essential to all of his causes of action asserted against Carlisle because there|
is no threshold exposure to a Carlisle product. Carlisle is a manufacturer of heavy duty brake
linings such as those found on big rig trucks. Plaintiff contends that he was injured through.
exposure to asbestos during his career, including while working on truck brakes as a mechanic
for United Parcel Service and Federal Express. However, the undisputed evidence is that
Plaintiff only removed or installed two brands of brakes — Bendix and Raybestos — and not
Carlisle. Absent a threshold exposure, there can be no causation.

Plaintiff testified at deposition that the only brands of brakes he removed or installed
were Bendix and Raybestos. Plaintiff also testified that he associated Carlisle only with a wood
and metal wheeled platform called a “creeper” and that he did not call ever working in his career
as a mechanic with any Carlisle products other than this “creeper.” Defense interrogatories
asked Plaintiff to identify, for each contended exposure to asbestos-containing friction products,
the manufacturer and type of each such friction product he removed or installed. Plaintiff's
responses did not name Carlisle at all.

If uncontradicted, the foregoing evidence would constitute a preponderance of the
evidence that the causation element of Plaintiff’ s case against Carlisle cannot be established.
This satisfies Carlisle’s initial burden as the moving party. Because Plaintiff cannot raise a
triable issue of fact that he was exposed to asbestos from a Carlisle product, summary judgment

is appropriate here.

I. STATEMENT OF FACTS

Plaintiff alleges that his illness was caused by his exposure to asbestos over the course of
his life. Undisputed Fact (“UF”) No. 1. All of Plaintiff's causes of action against Carlisle are
based upon his alleged exposure to an asbestos-containing brake lining allegedly manufactured,

supplied, or distributed by Carlisle. UF No. 2.

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DEFENDANT CARLISLE CORPORATION'S MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION FOR SUMMARY JUDGMIWhile working as a mechanic for UPS, Plaintiff personally performed brake work all the
time. UF No. 3. The old brakes he removed were Bendix. UF No. 4. Every single brake lining
and brake shoe that came off the UPS trucks was Bendix. UF No. 5, The new brakes he
installed also were Bendix. UF No. 6.

While working as a mechanic for Federal Express, Plaintiff performed brake work on
tractors and trailers. UF No. 7. He could not recall the manufacturer or brand name of the
brakes he took out of those vehicles. UF No. 8. As to the new parts he installed, they were
Bendix. UF No. 9.

While working as a mechanic for East Bay Regional Parks, Plaintiff installed Bendix and
Raybestos brakes. UF No. 10. He did not recall the brand of brakes he removed. UF No. 11.

Plaintiff also testified that he associated Carlisle only with a wood and metal wheeled
platform called a “creeper” and that he did not call ever working in his career as a mechanic with
any Carlisle products other than this “creeper.” UF No. 12.

Defense interrogatories asked Plaintiff to identify, for each contended exposure to
asbestos-containing friction products, the manufacturer and type of each such friction product he
removed or installed. UF No. 13. Plaintiffs responses did not name Carlisle at all. UF No. 14.

Nothing in Bendix’s interrogatory responses suggests that Carlisle played any role with

respect to asbestos-containing Bendix brakes. UF No. 15.

Ti LEGAL STANDARD FOR SUMMARY JUDGMENT

A motion for summary judgment must be granted if all the papers submitted show that
there is no triable issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law. Cal. Civ. Proc. Code § 437c(c) (LexisNexis 2009). A defendant can meet its

burden of proof on a motion for summary judgment by presenting affirmative evidence negating

an essential element of the plaintiffs claim. Guz v. Bechtel Nat'l, Inc., 24 Cal. 4th 317, 334

(2000). The moving defendant must present evidence that, if uncontradicted, “would constitute a|

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DEFENDANT CARLISLE CORPORATION'S MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION FOR SUMMARY JUDGMIpreponderance of evidence that an essential element of the plaintiff’s case cannot be
established.” Kids’ Universe vy. In2Labs, 95 Cal. App. 4th 870, 879 (2002).

Once the defendant has met its initial burden, the burden shifts to the plaintiff to show
that a triable issue of one or more material facts exists. Civ. Proc. Code § 437c(p}(2). The
plaintiff may not rely upon the mere allegations or denials of its pleadings, but instead must set
forth the specific facts showing that a triable issue of material fact exists. Id. If the plaintiff

cannot meet its burden, summary judgment is appropriate.

IV. ARGUMENT
A. PLAINTIFF CANNOT PROVE THE ELEMENT OF CAUSATION.
1 Factual Causation
“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 asbestos-containing products . . . .

Rutherford v. Owens-Corning, Inc., 16 Cal. 4th 953, 982 (1997). “[T]he proper analysis is to ask

whether the plaintiff has proven exposure to a defendant’s product, of whatever duration, so that

exposure is a possible factor in causing the disease... .” Lineaweaver v. Plant Insulation Co.,

31 Cal. App. 4th 1409, 1415-16 (1995), “[E]ven under the most lenient causation standards,
there must be proof that the defendant’s asbestos products or activities were present at plaintiff's

work site.” Smith v. AC&S, Inc., 31 Cal. App. 4th 77, 89 (1994), disapproved on other grounds

by Camargo v. Tjaarda Dairy, 25 Cal. 4th1235 (2001); accord McGonnell v. Kaiser Gypsum Co.

Inc., 98 Cal. App. 4th 1098, 1103 (2002). If there is no exposure, there is no causation. Dumin
v. Owens-Corning Fiberglas Corp., 28 Cal. App. 4th 650, 655 (1994).

The undisputed evidence shows that Plaintiff worked only with Bendix and Raybestos
brakes. Plaintiff does not associate Carlisle with brakes and does not recall every working with a
Carlisle brake product. In fact, it appears from his interrogatory responses that Plaintiff does not
even contend exposure to Carlisle. In sum, the undisputed evidence is that Plaintiff never was

exposed to an asbestos-containing Carlisle brake product.

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DEFENDANT CARLISLE CORPORATION'S MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION FOR SUMMARY JUDGMI2. Legal Causation

To establish causation in an asbestos-related injury action, the plaintiff must prove not
only threshold exposure to the defendant’s asbestos-containing product (cause-in-fact), but also
that such exposure was a “substantial factor” in bringing about the injury (legal causation).
Rutherford, 16 Cal. 4th at 982. Legal causation requires that the plaintiff “meet the burden of
proving that [such exposure] was a substantial factor causing the illness by showing that in
reasonable medical probability it was a substantial factor contributing to the plaintiff's or the
decedent’ s risk of developing [the alleged disease].” Id. “Many factors are relevant in assessing
the medical probability that an exposure contributed to the plaintiff’s asbestos disease.
Frequency of exposure, regularity of exposure, and proximity of the asbestos product to the
plaintiff are certainly relevant, although these considerations should not be determinative in
every case.” Lineaweaver, 31 Cal. App. 4th at 1416. A force which plays only an infinitesimal
or theoretical part is not a substantial factor. Id. at 1415.

Even assuming, arguendo, that Plaintiff could proffer some evidence of a threshold
exposure to an asbestos-containing Carlisle product, he still falls far short of establishing the
factual detail necessary to support substantial factor legal causation.

The burden shifts to Plaintiffs to raise a triable issue of material fact as to Decedent’s
exposure to an asbestos-containing Carlisle product. Because they cannot meet that burden,
summary judgment should be granted.

B. CAUSATION Is AN ELEMENT OF EACH OF PLAINTIFF’S CAUSES OF ACTION.

Plaintiff asserts against Carlisle causes of action for negligence, strict liability, false
representation/intentional tort. See Complaint, attached as Exhibit A to the Huie Decl. Each of
these causes of action requires that Plaintiffs prove the element of causation against Carlisle.
Because they cannot do so, their claims fail as a matter of law.

1 Negligence
The elements of Plaintiff's cause of action for negligence are: (1) the defendant owed the

plaintiff a legal duty of care, (2) the defendant breached that duty, and (3) the breach caused the

plaintiff injury. Ann M. v. Pacific Plaza Shopping Center, 6 Cal. 4th 666, 673 (1993).

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DEFENDANT CARLISLE CORPORATION'S MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION FOR SUMMARY JUDGMI2. Strict Products Liability

Plaintiff asserts a cause of action for strict products liability based on asbestos-containing
brake products. “A manufacturer is strictly liable in tort when an article he places on the market,
knowing that it is to be used without inspection for defects, proves to have a defect that causes

injury to a human being.” Greenman v. Yuba Power Products, 59 Cal. 2d 57, 62 (1963)

(emphasis added).
3. False Representation/Intentional Tort
Plaintiff's causes of action for false/representation/intentional tort are based on section
402-B of the Restatement of Torts. Plaintiff alleges that he relied on false representations made
by Carlisle about the merchantability of its products, and that as a direct and proximate result of
said false representations he was injured. Again, this cause of action requires some factual nexus|

between Carlisle and Plaintiff to satisfy the element of causation.

Vv. CONCLUSION
Plaintiffs neither have nor reasonably can obtain the evidence necessary to establish the
element of causation (factual or legal) against Carlisle. Therefore, Carlisle respectfully requests

that the Court grant this motion and enter summary judgment against Plaintiffs.

Date: August 28, 2009 BASSI, EDLIN, HUIE & BLUM LLP

By:_/s/ JEREMY D. HUTE
JEREMY D. HUIE, ESQ. (SBN 191145)
Attorneys for Defendant
CARLISLE CORPORATION
BASSL EDLIN, HULE & BLUM LLP
351 California Street, Suite 200
San Francisco, CA 94104
Telephone: (415) 397-9006

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DEFENDANT CARLISLE CORPORATION'S MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION FOR SUMMARY JUDGMIRe: Gordofredo Pique v. Asbestos defendants, et al.
San Francisco County Superior Court Case No. CGC 08-274659

PROOF OF SERVICE —- ELECTRONIC TRANSMISSION

STATE OF CALIFORNIA/COUNTY OF San Francisco

Tam a citizen of the United States and an employee in the County of San Francisco. Iam
over the age of eighteen (18) years and not a party to the within action. My business address is
BASSI, EDLIN, HUIE & BLUM LLP, 351 California Street, Suite 200, San Francisco,
California 94104.

On the date executed below, I electronically served the document(s) via LexisNexis File
& Serve, described below, on the recipients designated on. the Transaction Receipt located on the
LexisNexis File & Serve website.

DEFENDANT CARLISLE CORPORATION’S MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

On the following parties:

SEE SERVICE LIST PROVIDED BY LEXIS-NEXIS
Ideclare under penalty of perjury that the foregoing is true and correct and that this

document is executed on August 28, 2009, at San Francisco, California.

ts! ADELA AREVALO
ADELA AREVALO

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DEFENDANT CARLISLE CORPORATION'S MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION FOR SUMMARY JUDGMI