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  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview 
						
                                
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ONE SANSOME STREET, SUITE 1400
TELEPHONE (415) 362-2580

SAN FRANCISCO, CALIFORNIA 94104

Lewis BRISBOIS BISGAARD & SMITH LLP
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LEWIS BRISBOIS BISGAARD & SMITH LLP
CAMILLE K. FONG, SB# 113123

E-Mail: fonge@|bbslaw.com
ALEXANDRA M. OZOLS, SBN#202604 ELECTRONICALLY
E-Mail: ozols@Ibbslaw.com FILED
One Sansome Street Superior Court of California,
Suite 1400 County of San Francisco
San Francisco, California 94104 JUN 07 2011
Telephone: (415) 362-2580 Clerk of the Court
Facsimile: (415) 434-0882 BY: WILLIAM TRUPEK
Deputy Clerk
Attomeys for Defendant
SASCO (FKA SASCO ELECTRIC)

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO

CASE NO. CGC-08-274566

DEFENDANT SASCO’S (FKA SASCO
ELECTRIC) NOTICE OF MOTION AND
MOTION FOR SUMMARY JUDGMENT OR,
IN THE ALTERNATIVE, SUMMARY

RODRICK BRECKLER, ct al., )
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ASSOCIATED INSULATION OF ) ADJUDICATION OF ISSUES
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Plaintiffs,

Vv.

CALIFORNIA, et al.,
Date: June 23, 2011
Done 9:30 a.m.
220
Judge: Hon. Harold Kahn

Defendants.

Trial Date: July 11, 2011
) Action Filed: March 12, 2008

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE THAT on June 23, 2011 at 9:30 a.m., or as soon thereafter as the
matter may be heard in Department 220 or such other department as may be assigned of the above-
entitled Court at 400 McAllister Street, San Francisco, California 94102, pursuant to the Code of Civil
Procedure (“CCP”) § 437c(a), Defendant SASCO (FKA SASCO ELECTRIC) (“Defendant” or
“§ ASCO”) will and hereby does move for an order granting summary judgment on the grounds that
Plaintiffs RODRICK and JOANN BRECKLER (“Plaintiffs”) have failed to create a triable issue of
material fact as to SASCO’s alleged liability. Plaintiffs do not have nor can they reasonably obtain
evidence that SASCO disturbed existing asbestos-containing materials in Mr. Breckler’s presence and

4837-2815-2585.1 1
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TELEPHONE (415) 362-2580
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ONE SANSOME STREET, SUITE 1400
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that SASCO made any material misrepresentations to Plaintiffs, nor can they obtain such evidence.
Such evidence is necessary to support the essential element of causation required for all causes of
action asserted against SASCO in the Complaint, namely Negligence, Strict Liability, False
Representation, Premises Owner/Contractor Liability and Loss of Consortium. Mrs. Breckler’s
derivative claim for loss of consortium fails as well. Moreover Plaintiffs have no competent admissible
evidence, nor can they obtain such, to support their prayer for punitive damages as to SASCO.

In the alternative, if for any reason summary judgment cannot be granted, pursuant to the CCP
§437(c)f, SASCO will and hereby does move the court for an order adjudicating that there is no merit
to the following causes of action and prayers for damages contained in the complaint filed by Plaintiffs,
and that judgment shall be ordered in favor of SASCO and against Plaintiffs, and that the final
judgment in this action shall in addition to any matters determined at trial, award judgment as

established by such adjudication, as to any or all of the following causes of actions:

Plaintiffs’ First Cause of Action for Negligence fails as a matter of law because there is no

competent admissible evidence that SASCO exposed Mr. Breckler to asbestos.

Plaintiffs’ Second Cause of Action for Strict Liability fails as a matter of law because there
is no competent admissible evidence that SASCO exposed Mr, Breckler to asbestos.

Plaintiffs’ Third Cause of Action for False Representation fails as a matter of law because
there is no competent admissible evidence that SASCO knowingly made a false representation to
Plaintiffs, or made a representation recklessly without knowing whether it was true or false, with the
intent to defraud Plaintiffs, and that Plaintiffs were unaware of the falsity of the representation, acted in
reliance upon the truth of the representation, were justified in relying on the representation and as a
result were harmed.

Plaintiffs’ Fourth Cause of Action for Loss of Consortium fails as a matter of law because

there is no competent admissible evidence that fails as a matter of law because there is no competent

admissible evidence that SASCO exposed Mr. Breckler to asbestos or made a false representation to

4837-2815-2585.1 2
DEFENDANT SASCO’S NOTICE OF MOTION FOR SUMMARY JUDGMENTLewis Brissols BiSGAARD & SMITH LLP

ONE SANSOME STREET, SUITE 1400

‘SAN FRANCISCO, CALIFORNIA 94104

TELEPHONE (415) 362-2580

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Plaintiffs, which they relied upon, were justified in relying on the truth of the representation, and as a
result were harmed, therefore the derivative loss of consortium claim has no basis in fact.

Plaintiffs’ Fifth Cause of Action for Premises Qwner/Contractor Liability fails as a matter of
law because there is no competent admissible evidence that SASCO exposed Mr. Breckler to asbestos.

Plaintiffs’ Prayer for Punitive Damages fails as a matter of law because there is no

evidence that SASCO caused Mr. Breckler to be exposed to asbestos, much less that there is any “clear
and convincing evidence” that any of the conduct at issue concerning SASCO herein constitutes
“malice,” “oppression,” “fraud,” or “despicable conduct,” which is necessary to support a claim.

This motion for summary judgment is made on the ground that the material facts supporting
entry of judgment herein are without dispute and, based upon the undisputed material facts, SASCO is
entitled to summary judgment, or in the alternative, summary adjudication or summary adjudication of
issues, in its favor, and against Plaintiffs, as a matter of law.

This motion is based upon this Notice of Motion and Motion, the Memorandum of Points
and Authorities in support of the Motion, the Separate Statement of Undisputed Material Facts in
support of the Motion, the Declaration of Alexandra M. Ozols and the exhibits thereto, and the papers,
records, and pleadings on file with this Court and on such oral or documentary evidence as may be

presented at the hearing of this matter.

DATED: June 6, 2011 Respectfully submitted,

LEWIS BRISBOIS & SMITH LLP

4837-2815-2585.1 3
DEFENDANT SASCO’S NOTICE OF MOTION FOR SUMMARY JUDGMENTLEWIS
BRISBOIS
BISGAARD
&SVIHUP

CALIFORNIA STATE COURT PROOF OF SERVICE
Redrick Breckler, et at. v. Associated Insulation of California, et al. - File No, 50027-1140

STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO

At the time of service, I was over 18 years of age and not a party to the action. My business
address is One Sansome Street, Suite 1400, San Francisco, California 94104.

On June 7, 2011, I served the following document(s): DEFENDANT SASCO’S (FKA
SASCO ELECTRIC) NOTICE OF MOTION AND MOTION FOR SUMMARY
JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES;
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR
SUMMARY JUDGMENT; SEPARATE STATEMENT OF UNDISPUTED MATERIAL
FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT; DECLARATION OF
ALEXANDRA M. OZOLS IN SUPPORT OF DEFENDANT SASCO’S MOTION FOR
SUMMARY JUDGMENT; and PROPOSED ORDER

I served the documents on the following persons at the following addresses (including fax
numbers and e-mail addresses, if applicable):

Attomeys for Plaintiff:

David R. Donadio, Esq.
BRAYTON **PURCELL
222 Rush Landing Road
P. O. Box 6169

Novato, CA 94948-6169

The documents were served by the following means:

{[X] (BY ELECTRONIC SERVICE VIA LEXISNEXIS FILE & SERVE) Based on a court order
I caused the above-entitled document(s) to be served through LexisNexis File & Serve at
www fileandserve.lexisnexis.com addressed to all parties appearing on the electronic service
list for the above-entitled case. The service transmission was reported as complete and a
copy of the LexisNexis file & Serve Filing Receipt Page/Confirmation will be filed,
deposited, or maintained with the original document(s) in this office. Receipt number is

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

Executed on June 7, 2011, at San Francisco, California.

/s/Mary Ann Trubiano
Mary Ann Trubiano

4843-7866-4713.1
PROOF OF SERVICE