Hearing: RUFUS ALEXANDER VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al

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                                Gordon & Rees LLP

Embarcadero Center West

27S Battery Strect, Suite 2000

San Francisco, CA O40

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S. MITCHELL KAPLAN (SBN: 95065)
CHRISTOPHER D. STRUNK (SBN: 214110)
BETHANY A. STAHLEY (SBN: 209421)
JAMES K. HOLDER (SBN: 267843)
GORDON & REES LLP

Embarcadere Center West

275 Battery Street, Suite 2000

San Francisco, CA 94111

Telephone: (415) 986-5900

Facsimile: (415) 986-8054

Attorneys for Defendant
THE BUDD COMPANY

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

OCT 22 2010

Clerk of the Court
BY: JUDITH NUNEZ
Deputy Clerk

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN FRANCISCO

RUFUS ALEXANDER,
Plaintiff,
v

ASBESTOS DEFENDANTS (BP)

Defendants.

Ne ee ae Sa ne ae it ee ae SNe Se Sa! Ne” So oe Nag

CASE NO, CGC-08-274719

DEFENDANT THE BUDD
COMPANY’S NOTICE OF MOTION
AND MOTION FOR JUDGMENT ON
THE PLEADINGS

Accompanying Papers:

Notice of Motion and Motion;

Request for Judicial Notice;

Table of Out of State Authorities

Date: November 18, 2010
Time: 9:30 am

Dept: 220

Judge: Hon, Harold Kahn
Trial Date None Set

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on November 18, 2010, at 9:30 a.m., or as soon thereafter

as this matter may be heard, in Department 220 of this Court, defendant THE BUDD

WASHINGTON STATUTE OF LIMITATIONSGordon & Rees LLP
Embarcadero Center West
275 Battery Street, Suite 2000
San Francisco, CA 94111

28

TRBDAGS# 1DIRGRSIROY t

COMPANY (“BUDD”) will and hereby does move this Court for an order granting judgment on
the pleadings in favor of BUDD and against plaintiff Rufus Alexander. This motion is made
pursuant to Stoops v. Abbassi (2002) 100 Cal. App. 4th 644, Barker v. Hull (1987) 191 Cal. App.
3d 221, 224, and C & H Foods Co, v. Hartford Ins. Co. (1984) 163 Cal. App. 3d 1055, 1063, on
the grounds that plaintiff has failed to state a claim against Budd.

The California Supreme Court has mandated that a plaintiff in an asbestos case “nvust, in
accordance with traditional tort principles, demonstrate . . . that a product or products supplied
by the defendant, to which he became exposed” caused injury. (Rutherford v. Owens-Illinois
(1997) 16 Cal 4th 953, 958, emphasis added.) “{T]he plaintiff must prove that the defective
products supplied by the defendant” caused injury. (Id., 16 Cal.4th at 968.) The burden of proof
on the issue of exposure to a defendant's asbestos-containing product lies with the plaintiff, and
“filf there is no exposure, there can be no causation.” McGonnell v. Kaiser Gypsum Co., Inc
(2002) 98 Cal .App.4th 1098, 1103 Here, there is no evidence plaintiff worked with any Budd
Company product, as there is not a single allegation in his Complaint averring this fact. Further,
as plaintiff has refused to attend his deposition, he will be unable to do so at trial, and should not
be allowed to amend.

This motion is based on this Notice of Motion; the accompanying Memorandum of
Points and Authorities in Support thereof; the accompanying Separate Statement of Undisputed
Facts in Support thercof; the Declaration of Christopher D. Strunk in support thereof; in support
thereof; the Table of Out of State Authorities and the exhibits attached thereto, the Separate
Request for Judicial Notice; the pleadings, records and other documents on file in this action; and

such other and further evidence as may be presented at the hearing of the motion.

DATED: October ey 2010 GORDON & REES LLP

CH PHER D: STRUNK
Attorneys for Defendant
THE BUDD COMPANY

2

NOTICE OF MOTION FOR JUDGMENT ON THE PLEADING ON THE ISSUE OF THE APPLICATION OF THE
WASHINGTON STATUTE OF LIMITATIONS27

FeRD OST IUREREIRINg

Rufus Alexander y. Asbestos Defendants (BP), et al.
San Francisco Superior Court Case No. CGC-08-274719
Our Client: The Budd Company

PROOF OF SERVICE

Lam a resident of the State of California, over the age of eighteen years, and not a party
to the within action. My business address is: Gordon & Rees LLP, 275 Battery Street, Suite
2000, San Francisco, CA 94111. On the date below, I served the document(s) described as
follows:

THE BUDD COMPANY'S NOTICE OF MOTION AND MOTION FOR
JUDGMENT ON THE PLEADINGS

DEFENDANT THE BUDD COMPANY’S MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF ITS MOTION FOR JUDGMENT ON THE
PLEADING

THE BUDD COMPANY’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT
MOTION FOR JUDGMENT ON THE PLEADINGS

oO by having personally delivered via First Legal Support Services messenger the
documeni(s) listed above to the person(s) at the address(es) set forth below.

oO by placing true copy(ies) of the document(s) listed above enclosed in a sealed
envelope, at a station designated for collection and processing of envelopes and
packages for overnight delivery by FEDEX as part of the ordinary business practices
of Gordon & Rees LLP described below, addressed as follows:

by transmitting via FACSIMILE the document(s) listed above to the following:
by placing the document(s) listed above in a sealed envelope with postage thereon

fully prepaid, in UNITED STATES MAIL in the State of California, at San Francisco,
addressed as set forth below.

ko

Yam readily familiar with the firm’s practice of collection and processing
correspondence for mailing. Under that practice it would be deposited with the U.S.
Postal Service on that same day with postage thereon fully prepaid in the ordinary
course of business. | am aware that on motion of the party served, service is presumed
invalid if postal cancellation date or postage meter date is more than one day afler the
date of deposit for mailing in affidavit.

Rufus Alexander Plaintiff in Pro Per
In Pro Per

170 Cashmere Street, Apt. D

San Francisco, CA 94124

declare under penalty of perjury under the laws of the State of California that the above
is true and correct.

Executed on October 21, 2010, at San Francisco, California.

battles KI}

ndrea K. Bean