Motion-Secondary: ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS

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                                LAs OFFICES OF
COOLEY MANION JONES HAKE Kurowsxi LLP

William M. Hake, Esq. (State Bar No. 110956)
Joanna L. Drozd, Esq. (State Bar No.253707)

Daniel B. Merrick, Esq. (State Bar No. 267276) ELECTRONICALLY
COOLEY MANION JONES HAKE KUROWSKI LLP FILED
201 Spear Street, Suite 1800 Superior Ct oe
San Francisco, CA 94105 coanty of Son Prencioce”
Tel: (415) 512-4381 FEB 02 2011

Pax: G19) 512-6791 Clerk of the Court
Attorneys for Defendant BY: CHRISTLE ARRIOLA

COLLINS ELECTRICAL COMPANY, INC. Depuly Cle
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, MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
v. COLLINS ELECTRICAL COMPANY,
INC.’S DEMURRER TO PLAINTIFFS’
ASBESTOS DEFENDANTS (BP), COMPLAINT
Defendants.
m Hearing Date: March 3, 2011
Time: 9:30 a.m.
Dept.: 220
Complaint: December 17, 2010
Trial Date: TBD

1 INTRODUCTION

Plaintiffs Robert Ross and Jean Ross (“Plaintiffs”) merely allege exposure to “asbestos”
or “asbestos-containing products,” in the generic sense, and then name a host of entities,
including Collins Electrical Company, Inc. (“CEC”), as defendants. Such sweeping, global
allegations are insufficient. Bockrath v. Aldrich Chem. Co. (1999) 21 Cal.4th 71; Code Civ.
Proc. (“CCP”) § 430.10(e)-(f). Moreover, other than generally alleging CEC’s presence at some
of Plaintiff's worksites, the complaint contains no specific allegations against CEC and therefore
fails to properly give notice of any claims. CCP § 430.10(e)-(f). Asbestos cases are not entitled

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF COLLINS ELECTRICAL COMPANY, INC.’S DEMURRER TO
PLAINTIFFS’ COMPLAINT‘LAW OFFICES OF
COOLEY MANION JONES HAKE Kurowski LLP

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to lenient pleading requirements. The Court must serve as a strong gatekeeper against cases
founded on speculative, boilerplate allegations. For theses reasons, CEC respectfully urges the
Court to sustain its demurrer.

Il. STATEMENT OF FACTS

Plaintiffs filed their complaint on December 17, 2011, naming CEC as one of over one
hundred defendants in this matter. Exhibit A.| According to Brayton Purcell’s “check the box”
pleading system, Plaintiffs allege the following causes of action against CEC: “Negligence,”
“Strict Liability,” “Premises Owner/Contractor Liability,” and “Loss of Consortium.” Exhibit A,
at p. 2. Exhibit C to Plaintiffs’ complaint, entitled, “Premises Owner Defendants,” alleges that
CEC was present at some of Plaintiffs worksites at certain times but lacks any further
allegations as to CEC. Exhibit A, at pp. 119:21-122:15. The complaint also incorporates the
generic allegations of the Brayton Purcell Master Complaint for Personal Injury [and Loss of
Consortium] — Asbestos. Exhibit A, at p. 1:18-23; Exhibit B, at p. 158:10.

However, other than alleging the mere presence of CEC at some Plaintiff's worksites
over his almost thirty year career, none of Plaintiffs’ allegations specifically address CEC.
Plaintiffs’ complaint fails to plead: (1) CEC’s connection with any asbestos-containing products,
either generically identified or specifically identified by brand name, model, manufacturer, or
supplier, (2) how CEC purportedly exposed Plaintiff to asbestos, (3) the length of exposure
alleged against CEC, (4) how CEC acted negligently, or (5) how CEC manufactured, distributed,
sold, or supplied a defective product (or is liable under any other theory of products liability).
Exhibit A.

Similarly, Brayton Purcell’s master complaint makes no specific allegations against CEC
and fails to identify any specific asbestos-containing products. Instead, it repeatedly makes
generic references to “asbestos” and “asbestos-containing products.” For example, Plaintiffs’
first cause of action for “Negligence” refers to “a certain product, namely asbestos, and other
products containing asbestos” (Exhibit B, at pp. 4:1-2, 10-11, 60:4-5, 12-13), “asbestos and

asbestos-containing products” (pp. 70:16-18, 23; 71:2-5), and “asbestos and products containing

1 All exhibits are attached to the accompanying Declaration of Daniel B. Merrick (“Merrick Decl.”).
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF COLLINS ELECTRICAL COMPANY, INC.'S DEMURRER TO
PLAINTIFFS’ COMPLAINTLaw OFFICES OF
COOLEY MANION JONES HAKE KuROwsKI LLP

asbestos and related products and equipment” (p. 70:5-6). The closest Plaintiffs come to naming
a specific product is the imprecise allegation that al! defendants purportedly knew “asbestos and
products containing asbestos and related products and equipment . . . would be used for
insulation, construction, plastering, fireproofing, soundproofing, automotive, aircraft and/or other
applications.” Exhibit B, at p. 70:4-9. But this sweeping allegation merely states the products’
alleged purpose or function, it does not identify the products themselves.” It also vaguely speaks
of “related products and equipment” without defining those terms. Exhibit B, at p. 70:6.

Likewise, Plaintiffs’ second cause of action for “Strict Liability” only identifies “asbestos
and asbestos-containing products” (Exhibit B, at pp. 72:26; 73:1, 16-17, 19, 21, 28; 74:1, 3-5,
12-15, 18-19; 74:28-75:1; 75:3, 7-8; 78:12) and “asbestos and various asbestos-containing
products” (p. 18:5-6)2

Plaintiffs’ fourth case of action for “Loss of Consortium” is similar to Plaintiffs’ other
causes of action in that it is broad, general, and unspecific, namely as to type of damages Ms.
Ross has suffered as a result of her husband’s alleged injury. Exhibit B, at pp 80:5-81:2.

Finally, Plaintiffs’ fifth cause of action for “Premises Owner / Contractor Liability” goes
farther, but it is not specific to CEC and still only generically identifies “asbestos-containing
insulation, other building materials, products, and toxic substances” (Exhibit B, at pp. 81:14-15;
96:6-7; 97:27), “asbestos-containing insulation” (p. 81:21), “asbestos fibers and other toxic
substances” (pp. 96:10, 12, 23-24; 98:2, 15-16), “asbestos products and materials and other toxic
substances” (p. 97:2-3), “asbestos-containing products” (p. 97:10), “asbestos-containing
materials” (pp. 98:10, 13; 100:22-23), “toxic substances, including but not limited to asbestos”
(p. 98:19-20), “asbestos [and/or] other toxic dusts” (pp. 98:24; 100:8-9), “asbestos-containing
[and/or] toxic dusts” (p. 98:25, 26), “asbestos fiber” (p. 100:6), “asbestos” (p. 100-18, 20, 24),

“asbestos dust and other toxic fumes or substances” (p. 99:28), and “asbestos [and/or] other toxic

? More specific allegations are levied against certain classes of defendants that expressly exclude CEC. These
include friction product defendants (Exhibit B, at pp. 62:21-65:13), the grinding whcel defendants (pp. 67:9-69:18),
and the boiler insurance inspection defendants (pp. 69:19-70:3).
3 As with Plaintiffs’ first cause of action, Plaintiffs’ second cause of action includes more specific allegations against
the grinding wheel defendants—a group that excludes CEC. Exhibit B, at pp. 75:25-78:4.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF COLLINS ELECTRICAL COMPANY, INC.’S DEMURRER TO
PLAINTIFFS’ COMPLAINTLAW OFFICES OF
COOLEY MANION JONES HAKE Kurowskt LLP

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substances” (pp. 99:21; 100:12-13). In sum, the Master Complaint makes no specific allegations
against CEC and fails to identify any specific asbestos-containing products.

In sum, Brayton Purcell’s master complaint makes no specific allegations against CEC
and fails to identify any specific asbestos-containing products. In total, Plaintiff's levy these
same global allegations against ai least 100 defendants. Exhibit A, at pp. 1-10.

Ii. LEGAL ARGUMENT

A. Standard for Granting a Demurrer.

Demurrers test the legal sufficiency of a complaint. A party may demur to a complaint or
cause of action on the grounds that either is uncertain or fails to state facts sufficient to constitute
acause of action. CCP §§ 430.10()-(D, 430.50(a); CRC 3.1320(b). Where “the pleaded facts of
negligence and injury do not naturally give rise to an inference of causation, the plaintiff must
plead specific facts affording an inference the one caused the others.” Bockrath, supra, 21
Cal.4th at p. 78 (internal quotes omitted). Sustaining a demurrer without leave to amend is
proper where it appears “probable from the nature of the defects and previous unsuccessful
attempts to plead that plaintiff cannot state a cause of action.” Krawitz v. Rusch (1989) 209
Cal. App.3d 957, 967 (internal quotes omitted).

B. Plaintiffs Must Identify the Specific Asbestos-Containing Products
Allegedly Attributable to CEC That Caused Plaintiff’s Purported Injury.

Our Supreme Court has had occasion to define the pleading requirements in toxic
exposure cases. In order to plead that a defendant’s product was a substantial factor in causing
the alleged injury:

(1) Plaintiff must allege that he was exposed to each of the toxic
materials claimed to have caused a specific illness. An allegation
that he was exposed to “most and perhaps all” of the substances
listed is inadequate.

(2) He must identify each product that allegedly caused the injury.
It is insufficient to allege that the toxins [(e.g., the “asbestos”)] in
defendants’ products caused it.

(3) He must allege that as a result of the exposure, the toxins
entered his body.

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‘MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF COLLINS ELECTRICAL COMPANY, INC.’S DEMURRER TO
PLAINTIFFS’ COMPLAINTLaw OFFICES O17
COOLEY MANION JONES HAKE Kurows«i LIP

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(4) He must allege that he suffers from a specific illness, and that
each toxin that entered his body was a substantial factor in
bringing about, prolonging, or aggravating that illness.

(5) Finally, except in a case (unlike this one) govemed by the
principle of liability based on market share for a uniform product
that we outlined in Sindell vy, Abbott Laboratories (1980) 26 Cal.3d
588, 612... , he must allege that each toxin he absorbed was
manufactured or supplied by a named defendant.

Bockrath, supra, 21 Cal.4th at p. 80 (relying on Rutherford v. Owens-Hlinois, Inc. (1997) 16
Cal.4th 953) (emphasis added) (footnote omitted); see also Tellez-Cordova v. Campbeli-
Hausfeld/Scott Fetzger Co. (2004) 129 Cal.App.4th 577, 586 (approving these requirements).

In Bockrath, plaintiff sued fifty-five defendants, generically alleging exposure through
the direct use of various products — some of which purportedly contained asbestos — and through
other acts that caused toxins to be circulated. 21 Cal.4th at pp. 77-79 & fn. 1. However, plaintiff
failed to specifically identify and connect each defendant's product with each alleged exposure.
Id. Plaintiff simply referred to “products” and to “chemicals and chemical ingredients.” Id. at p.
77. The trial court disapproved of this “very broad and very global” language. id. at p. 78. It
said: “You have to be very specific as to each defendant and as to each chemical and causation
issue. Itis not here. Itis a global claim. Everybody is responsible for your client’s medical
problem, but we don’t know which defendant and we don’t know which chemical it is. We have
no idea in terms of causation.” id. (emphasis added).

The Court cautioned:

The law cannot tolerate lawsuits by prospecting plaintiffs who sue
multiple defendants on speculation that their products may have
caused harm over time through exposure to toxins in them, and
who thereafter try to learn through discovery whether their
speculation was well-founded.

Id. atp. 81.

It is not enough that the Court or defendants understand what Plaintiffs are attempting to
plead. As Bockrath notes: “[W]e understand plaintiff to be attempting to allege that defendants’
products cause cancer, he was exposed to them, and they migrated to his internal organs and
caused his multiple myeloma. ... [{] In light of Rutherford... , the foregoing allegations were

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF COLLINS ELECTRICAL COMPANY, INC.’S DEMURRER TO
PLAINTIFFS’ COMPLAINTLaw OFFICES OF

COOLEY MANION JONES HAKE Kurowsk! LLP

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insufficient.” Id, at p. 79. Defendants’ demurrers were sustained, the Court of Appeal affirmed,
and the Supreme Court remanded so plaintiff could re-plead according to the above-stated
criteria. Id. at pp. 79-81.

Cc. Plaintiffs’ Complaint and Brayton Purcell’s Master Complaint Do Not
Satisfy Bockrath’s Product Identification Requirements.

To meet Bockrath’s basic pleading requirement, Plaintiffs must connect CEC with
specific asbestos-containing products. Plaintiff's “must identify each product” that purportedly
caused injury and “must allege that each toxin absorbed was manufactured or supplied by a
named defendant.” Bockrath, supra, 21 Cal.4th at p. 80. Here, Plaintiffs do neither, rendering
the entire complaint insufficient.

Plaintiffs’ complaint (and by extension Brayton Purcell’s master complaint) repeatedly
identifies nothing more than “asbestos,” “asbestos-containing products,” and related
permutations. Such allegations are insufficient. “[A]sbestos is not a ‘product,’ but rather a
generic name for a family of minerals.” Mullen v. Armstrong World Indus. (1988) 200
Cal. App.3d 250, 257 (internal quotes omitted), “Asbestos is a generic designation possessing a
rainbow-like diversity and a bewildering array of potential uses.” Jd. at p. 256. Similarly,
“asbestos-containing products” encompasses an extremely large and diverse class of products.
Id, (explaining asbestos products have “widely divergent toxicities” and chemical compositions,
with some “presenting a much greater risk of harm than others”), Vermeulen v. Superior Court
(1988) 204 Cal. App.3d 1192, 1198 (noting asbestos cases involve “numerous products and uses
within a variety of industries and occupations under differing circumstances and conditions”).

Plaintiffs fail to identify and connect any specific products or brand names with CEC.
Even his passing reference to “asbestos-containing insulation, other building materials, products,
and toxic substances” — which only appears in the fifth cause of action for “Premises Owner /
Contractor Liability” — is insufficiently precise given the extraordinarily wide array of
residential, commercial, and industrial uses and types of insulation and building materials.
Exhibit B, at pp. 81:14-15; 96:6-7; 97:27. Similarly, Plaintiffs’ first cause of action for

“Negligence” contains the imprecise allegation that “asbestos and products containing asbestos

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF COLLINS ELECTRICAL COMPANY, INC.’5 DEMURRER TO
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COOLEY MANION JONES HAKE KuROWSKI LLP

and related products and equipment . . . would be used for insulation, construction, plastering,
fireproofing, soundproofing, automotive, aircraft and/or other applications.” Exhibit B, at p.
70:5-9. But this merely states the products’ alleged purpose or function; it does not identify
specific products. It also vaguely speaks of “related products and equipment” without defining
those terms. Exhibit B, at p. 70:6.

Bockrath requites a level of specificity that Plaintiffs lack. Plaintiffs do not (1) “identify
each product” that allegedly caused Mr. Ross’s injury, (2) “allege that each toxin he absorbed
was manufactured or supplied by a named defendant,” or (3) connect any specific products or
brand names with CEC. Bockrath, supra, 21 Cal.4th at p. 80. The Court should sustain CEC’s
demurrer on the grounds that Plaintiffs’ complaint is uncertain and fails to state facts sufficient to
constitute a cause of action. CCP § 430.10(e)-(f).

D. Plaintiffs Makes No Direct Allegations Against CEC and Consequently Fail
to Give Notice of the Facts Underlying Any Claim.

At the pleadings stage, Plaintiffs must allege that CEC engaged in some specific course
of behavior that exposed him to asbestos. The purpose of pleading is not stating what
conceivably might be; pre-filing investigation and specific allegations are required. Discovery
itself may be a fishing expedition (Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355,
384-386), but, to continue the analogy, Plaintiffs must first identify the fish’s location. Bockrath
defines that requirement. Plaintiffs must investigate his claim before filing suit and then allege
specific facts against CEC. Here, Plaintiffs’ complaint is overly broad, ill-defined, and
uncertain.

Plaintiffs describe no CEC-specific conduct whatsoever. Plaintiffs name a number of Mr.
Ross’s worksite they allege CEC was present but fail to plead: (1) CEC’s connection with any
asbestos-containing products, either generically identified or specifically identified by brand
name, model, manufacturer, or supplier, (2) how CEC purportedly exposed Plaintiff to asbestos,
(3) the length of exposure alleged against CEC, (4) how CEC acted negligently, or (5) how CEC
manufactured, distributed, sold, or supplied a defective product (or is liable under any other
theory of products liability). Exhibits A.

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF COLLINS ELECTRICAL COMPANY, INC.’S DEMURRER TO
PLAINTIFFS’ COMPLAINTLaw OFFICES OF
COOLEY MANION JONES HAKE KurowsKI LLP

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Since no direct allegations are provided, CEC is purportedly expected to analyze
Plaintiffs’ entire 171 page master complaint to determine which allegations apply to it, as
opposed to the approximate 100 other defendants sued thus far. In effect, Plaintiffs accuse CEC
of committing every conceivable asbestos-related act that potentially exposed Plaintiff. These
sweeping allegations are also made without identifying any specific products. And the same
generic language is levied against every defendant. This smacks of the “extremely vague, very
broad and very global” language expressly criticized in Bockrath. 21 Cal.4th at p. 78.

Plaintiffs’ lack of allegations specific to CEC is insufficient. Plaintiffs fail to give CEC
reasonable notice of the facts underlying any claims brought against it, Merely imparting that
this case is an “asbestos action” does not suffice. Plaintiffs’ complaint is uncertain and fails to
state facts constituting any cause of action. CCP § 430.10(¢)-(f).

IV. CONCLUSION

For these reasons, CEC respectfully urges the Court to sustain its demurrer as to all
causes of action. Merely alleging exposure to “asbestos” and “asbestos-containing products,” in
the generic sense, without identifying specific products, is insufficient. The Court should serve
as a strong gatekeeper against boilerplate allegations.

Respectfully Submitted,

Dated: February 2, 2011 COOLEY MANION JONES HAKE
KUROWSKI LLP

wy. D.Mtricd.

.
Daniel B. Merrick, Esq.
Attomeys for Defendant
COLLINS ELECTRICAL
COMPANY, INC.

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF COLLINS ELECTRICAL COMPANY, INC.’S DEMURRER TO
PLAINTIFFS’ COMPLAINT