On December 17, 2010 a Motion-Secondary was filed involving a dispute between Ross, Jean, Ross, Robert, and Acco Engineered Systems, Inc., Advanced Mechanical, Advance Mechanical Contractors, Inc., Air Systems Mechanical Contractor, A & K Heating Company, Inc., Albay Construction Company, Allen-Simmons Heating & Sheet Metal Company Inc., Allied Fire Protection, Allied Sprinkler Company, Inc., Allsberry Mechanical Corporation, Anderson, Rowe & Buckley, Inc., Associated Insulation Of California, A. Teichert & Son, Inc., Balliet Bros. Construction Corporation, Banner Drywall & Painting Co. Inc., Barnes Construction Co., Bayer Cropscience Inc., Bayer Cropscience, Inc., Successor To Amchem, Bell Products Inc., Beta Mechanical Contractors, L.P., Bragg Investment Company, Inc., Cahill Construction Co., Inc., Cahill Construction Services, Inc., Cahill Contractors, Inc., California Drywall Co., Castro Construction, Inc., C.C. Moore & Co. Engineers, Cincinnati Valve Company, Cjr Plastering, Clausen-Patten, Inc., Clausen-Patten, Inc., A Dissolved Corporation, Climate Air, Inc., Climate Control Co., Inc., Collins Electrical Company, Inc., Commair Mechanical Services, Consolidated Insulation, Inc., Cosco Fire Protection, Inc., Cosco Sprinkler, Critchfield Mechanical, Inc., C & R Plastering, Inc., Csk Auto, Inc., Cupertino Electric, Inc., Delucchi Sheet Metal Works, Dilland Sederberg Plumbing, Does 1-8500, Domco Products Texas Inc., Domco Products Texas, L.P., Donovan Construction, Dorn Refrigeration, Dorn Refrigeration And Air Conditioning, Dpr Construction, Duro Dyne Corporation, D.W. Nicholson Corporation, D. Zelinsky & Sons, Inc., Emil J. Weber Electric Co., Erwin Mechanical Inc., Ex- Fme, Inc. (Fka Fischbach And Moore Electric,, Fairmont Hotel Company, Fluor Corporation, Foley Electric Co., Foley Electric, Inc., Fuller Floors, General Mills, Inc., Giampolini & Co., Graybar Electric Company, Inc., Hanson Permanente Cement, Inc. Formerly Known As, Harold Beasley Plumbing And Heating, Inc., Harry Lee Plumbing & Heating, H & C Investment Associates, Inc., Henry C. Beck Company, Imperial Plastering & Drywall, Insulation Specialties, Inc., James A. Nelson Co., Inc., Johnson Controls, Inc., Jones Plastering Company, Joseph Bruno Sheet Metal Co., Inc., J.T. Thorpe & Son, Inc., J.W. Mcclenahan Company, J.W. Mcclenahan Company, Inc., Kentile Floors, Inc., Laub Sheet Metal Works, Lone Star Industries, Inc., Mack Construction Co., Magee, Robert, Malm Metal Products, Inc., Marine Engineering And Supply Company, Marshco Auto Parts, Inc., Mattock Construction Company, Mcclure Electric, Inc., Metropolitan Life Insurance Company, Michael Brothers, Midstate Mechanical, Inc., Mitchell Bros. Truck Lines, Inc., Monsanto Company, Sued As "Pharmacia Corporation", Oakfabco, Inc., Ortho-Craft, Pacific Fireproofing, Pacific Mechanical Corporation, Parker Insulation Contracting & Supply Co. Inc., Perini Corporation, Pharmacia Corporation, Which Will Do Business In, Pribuss Engineering, Pribuss Engineering, Inc., Raymond Interior Systems-North, Red Top Electric Co. Emeryville, Inc., Robert Magee, Rollie R. French, Inc., Rollins Construction, Rountree Plumbing & Heating Inc., Scott Co. Of California, S F L, Inc., S.J. Amoroso Construction Co., Inc., Slakey Brothers, Inc., Sugden Engineering Co., Swinerton Builders, Temper Insulation, Temporary Plant Cleaners, Inc., Texaco, Inc., The Goodyear Tire & Rubber Company, The W.W. Henry Company, Tuttle And Bailey Corp, Van Mulder Sheetmetal, Van-Mulder Sheet Metal, Inc., Walnut Creek Sheet Metal, Furnace & Air, W.C. Thomason, W.C. Thompson, Webcor Builders, Inc., Westburne Supply, Inc., Willard Electric, Wright Schuchart Harbor, Wright Schuchart Harbor Company, Ross, Jean, Ross, Robert, for civil in the District Court of San Francisco County.
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Bw oN Ps 4 a & ge z S z ~ ne BE Law OOLEY MANION Jo C William M. Hake, Esq. (State Bar No. 1109356) Melissa E. Macfarlane, Esq. (State Bar No. 239811) ELECTRONICALLY Rachael A. Buckman, Esq. (State Bar No. 263224) FILED COOLEY MANION JONES HAKE KUROWSKI LLP a 201 Spear Street, 18th Floor Se Geen reac San Francisco, CA 94105 Tel: (415) 512-4381 FEB 24 2011 Fax: (415) 512-6791 Clerk of the Court BY: CHRISTLE ARRIOLA Deputy Clerk Attorneys for Defendant TEMPORARY PLANT CLEANERS, INC. fik/a PLANT MAINTENANCE, INC. OF CALIFORNIA IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO ROBERT ROSS and JEAN ROSS, Case No. CGC-10-275731 Plaintiffs, DEFENDANT TEMPORARY PLANT CLEANERS, INC, f/k/a PLANT Vv. MAINTENANCE, INC. OF CALIFORNIA’S REPLY TO FOSTER WHEELER LLC (FKA FOSTER PLAINTIFFS’ OPPOSITION TO WHEELER CORPORATION); Defendants as | DEMURRER TO PLAINTIFFS’ Reflected on Exhibit | attached to the Summary COMPLAINT Complaint herein; and DOES 1-8500 Hearing Date: March 3, 2011 Defendants. Time: 9:30 a.m, Dept.: 220 Complaint: December 17, 2010 Trial Date: TBD In their opposition, Plaintiffs contend they “are willing” (1:26) and “stand ready” (2:26) to amend their Complaint with details allegedly responsive to the instant Demurrer. But, what Plaintiffs “could” or “would” do to modify their Complaint is of no consequence. The Court should sustain this Demurrer because the essential uncontested point remains: Plaintiffs’ Complaint, as presently comprised, merely alleges exposure to “asbestos” and “asbestos- containing products,” in the generic sense, without identifying specific brand names and products as to Defendant Temporary Plant Cleaners, Inc. (“TPC”). Bockrath y. Aldrich Chem. Co. (1999) -1- DEFENDANT TEMPORARY PLANT CLEANERS, INC. f/k/a PLANT MAINTENANCE, INC. OF CALIFORNIA'S REPLY FO PLAINTIFFS” OPPOSITION TO MOTION TO STRIKE.Law OOLEY MANION Jo ay a & & z 9 & 2 ne C Bw oN 21 Cal.4th 71, relying on Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953. Such allegations are insufficient. Specifically, Plaintiffs’ causes of action alleged against TPC contain improper generalized allegations. Since those claims collectively comprise Plaintiffs’ entire complaint against TPC, the Court should sustain TPC’s demurrer in its entirety on the grounds it fails to state facts sufficient to constitute a cause of action pursuant to Code of Civil Procedure § 430.10(e). In addition, Plaintiffs’ direct allegations against TPC are so imprecise that they fail for uncertainty. CCP § 430.10(4). Plaintiffs’ complaint, as presently comprised, describes no TPC- specific conduct whatsoever. It makes no allegations concerning: (1) TPC’s connection with any specific asbestos-containing products, by providing brand name, model, manufacturer, or supplier, (2) how, when, and where TPC purportedly exposed Plaintiff to asbestos, (3) how TPC acted negligently, (4) how TPC manufactured, distributed, sold, or supplied a defective product (or is Hable under any other theory of products liability), (5) how TPC is liable as a “premises owner/contractor,” and (6) how TPC acted with “oppression, fraud, or malice,” thus warranting a claim for punitive damages (CC § 3294). Plaintiffs complete lack of a reasonable and good faith attempt to oppose TPC’s Demurrer is evidenced by their opposition, which can be described as nothing more than regurgitation and completely devoid of any authority warranting the Demurrer be overruled, Plaintiffs’ complaints are continually deficient as they routinely file their “Master Complaint” which lacks any specificity as required by case authority: they are willingly and knowingly deficient, which potentially constitutes bad faith. CCP § 128.7 (authorizing sanctions for filing meritless pleadings). ti dit ue it it -2- DEFENDANT TEMPORARY PLANT CLEANERS, INC. f/k/a PLANT MAINTENANCE, INC. OF CALIFORNIA'S REPLY FO PLAINTIFFS” OPPOSITION TO MOTION TO STRIKE.For these reasons, more thoroughly addressed in TPC’s moving papers, Plaintiffs’ complaint is uncertain and fails to state facts sufficient to constitute a cause of action against Bw oN TPC. CCP § 430.10(e)-(f). Asbestos cases are not entitled to lenient pleading requirements and 5 || such should not be tolerated herein. 6 Respectfully Submitted, 7 || Dated: February 24, 2011 COOLEY MANION JONES HAKE 8 KUROWSKI LLP 9 t By: /s/ Rachael A, Buckman 0 William H, Hake, Esq. Melissa E. Macfarlane, Esq. i Rachael A. Buckman, Esq. Attorneys for Defendant Temporary Plant Cleaners, Inc. f/K/a Plant Maintenance, Inc. of California 4 a & ge z 9 & ~ ne g& Law OOLEY MANION Jo € 6 -3- DEFENDANT TEMPORARY PLANT CLEANERS, INC. f/k/a PLANT MAINTENANCE, INC. OF CALIFORNIA'S REPLY FO PLAINTIFFS” OPPOSITION TO MOTION TO STRIKE.