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

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Eugene C. Blackard Jr. (Bar No. 142090)
Cesar A, Alvarado (Bar No. 193973)
Carlos R. Simenez (Bar No, 233270)
ARCHER NORRIS

A Professional Law Corporation

2033 North Main Street, Suite 800
Walnut Creek, California 94596-3759
Telephone: 925.930.6600
Facsimile: 925.930.6620

Attorneys for Defendant
GRAYBAR ELECTRIC COMPANY, INC,

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

JAN 28 2011

Clerk of the Court
BY: RAYMOND K. WONG
Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY O:

ROBERT ROSS and JEAN ROSS,
Plaintiffs,
vy
C.C, MOORE & CO. ENGINEERS, et al.,
Defendant.

1 INTRODUCTION

F SAN FRANCISCO

ASBESTOS
Case No, CGC-10-275731

MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
GRAYBAR ELECTRIC COMPANY,
INC’S NOTICE OF DEMURRER AND
DEMURRER TO PLAINTIFFS’
COMPLAINT FOR PERSONAL INJURY
AND LOSS OF CONSORTIUM ~
ASBESTOS

Hearing Date: March 3, 2011

Time: 9:30 am.

Dept.: 220

Judge: Hon. Harold E. Kahn

Filed:
Trial Date:

December 17, 2010
None Set

Plaintiffs filed their Complaint For Personal Injury And Loss Of Consortium -- Asbestos

(“Complaint”) on December 17, 2010. As set forth more fully herein, Plaintiffs’ Complaint does

not allege facts sufficient to constitute causes of action for Negligence, Strict Liability False

Representation, Loss of Consortium, Concert of Action, Fraud, Deceit/Negligent

Misrepresentation/Concealment, and Fraud/Deceit/[ntentional Misrepresentation, under personal

injury claims. Plaintiffs also claim a prayer for Punitive Damages.

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COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOSa> Oo 8 ND HA BB YW YB &

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Ut. LEGAL ARGUMENT
In accordance with Code of Civil Procedure section 430.10, a defendant may object

to a complaint on any one or more of the following grounds:

(e) the pleading does not state facts sufficient to constitute a cause
of action,

(f) the pleading is uncertain. As used in this subdivision, uncertain
includes ambiguous and unintelligible.

A Plaintiffs’ Complaint Fails To State A Cause Of Action For Negligence Or
Strict Liability

No matter what theory of recovery plaintiffs proceed upon, California law requires that a
defendant’s conduct or omission be a legal cause of a plaintiff's injuries. The allegedly defective

product must be at least a substantial contributing factor to a plaintiff's injuries. Endicott v.

Nissan Motor Corp. (1977) 73 Cal.App.3d 917. In asbestos litigation, to recover under either a
theory of strict products liability or negligence, the plaintiff bears the burden of proving that his
was exposed to asbestos-containing products supplied or disturbed by the defendant. Barker v.
Lull Engineering (1978) 20 Cal.3d 413, 427, Until a plaintiff proves that he was exposed to an
asbestos-containing product, and that this product proximately caused the injuries complained of,
there is no liability under any theory of recovery, Garcia v, Joseph Vince Co. (1978) 84
Cal.App.2d 868, 877; Bares v. John Deere Co. (1983) 148 Cal.App.3d 40, 50. As the Court
succinctly put it in McGonnell v. Kaiser Gypsum Company (2002) 98 Cal. App.4”, 1098, “if there
has been no exposure, there can be no causation,” /d. at 1103.

In the Complaint, Plaintiffs seek to recover under the theories of Negligence and Strict
liability. Each of these causes of action requires proof of causation. (MeGonnell v. Kaiser
Gypsum Co, (2002) 98 Cal.App.4th 1098, 1102-3; Sindell v. Abbott Laboratories (1980) 26
Cal.3d 588.) In the context of asbestos litigation, causation is established where a plaintiff
establishes exposure to the defendant’s products. Until a plaintiff proves exposure to an asbestos-
containing product attributable to the defendant, and that this product proximately caused the injuries
complained of, there is no liability under any theory of recovery. (Lineaweaver v. Plant Insulation

Co. (1995) 31 Cal.App.4th 1409; Dumin v. Owens-Corning Fiberglass Corp. (1994) 28
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PLAINTIFFS
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Cal.App.4th 650; 655; Rutherford v. Qwens Mlinois, Inc, (1997) 16 Cal.4th 953; Gatton v. AP.
Green Services (1998) 64 Cal.App.4th 688, 690; McGonnell v. Kaiser Gypsum Co, (2002) 98
Cal.App.4th 1098.) Again, as the Court suceinetly put it in MeGonnell, supra, at 1103, “if there has
been no exposure, there can be no causation.”

Plaintiffs’ Complaint does not allege a single specific fact in support of the elements of a
Negligence or Strict Liability claim against Graybar. Rather than alleging specific facts that
would satisfy the requisite elements of a Negligence or Strict Liability cause of action, Plaintiffs
merely assert general boilerplate legal conclusions devoid of any factual basis and are, therefore,
properly subject to demurrer. Graybar's demurrer to the first and second causes of action for
Negligence and Strict Liability must, therefore, be sustained without leave to amend.

B Plaintiffs! Complaint Fails To State A Cause Of Action For False
Representation

As with the foregoing causes of action, absent a showing of exposure to the defendant's
products or materials, (.¢, absent causation), Plaintiffs’ false representation claim fails.

Section 402B of the Restatement Second of Torts provides that:

One engaged in the business of selling chattels who, by
advertising, labels, or otherwise, makes to the public a
misrepresentation of a material fact concerning the
character or quality of a chattel sold by him is subject to
liability for physical harm to a consumer of the chattel
caused by justifiable reliance upon the misrepresentation,
even though

(a) itis not made fraudulently or negligently, and

(b) the consumer has not bought the chattel from or
entered into any contractual relation with the seller."

[Emphasis added.)

By the plain language of the Restatement, it is clear that there must be a causal connection
between the false representation and the injury alleged.

The prerequisite of having a causal connection for such a claim is reinforced by the case
law interpreting Section 402B. In Hauter v, Zogarts (1975) 14 Cal. 3d 104, Plaintiff sued a

defendant manufacturer for personal injury alleging false representation of a defective product.
RIC335/1083341-1 3

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PLAINTIFFS"
COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM ~ ASBESTOSIn that instance, plaintiff sued a manufacturer of a golf training device for a brain injury that
occurred when the device malfunctioned and caused the ball to strike him in the head. Among
other allegations, plaintiffs alleged a false representation claim based upon the fact that the
defendant had advertised that the golfing device was completely safe, and would not hit the
player. The jury found for the defendant, and the trial court granted plaintiff's motion not
withstanding the verdict, Hauler, supra, at 108-110.

The Supreme Court affirmed, remanding the case for ascertainment of damages. In so
holding, the Supreme Court explained that the cause of action relied on the common law tort

principals reflected in Section 402B:

The rule “is one of strict liability for physical harm to the
consumer, resulting from a misrepresentation of the character or
quality of the chattel sold, even though the misrepresentation is an
innocent one, and not made fraudulently or negligently.”

Hauter, supra, at 114,

The Court concluded that the plaintiff reasonably believed that he could use the device
with safety, and agreed with the trial court that the plaintiff had met all the elements of a cause of
action for misrepresentation. Jd. at 114,

Asbestos cases have also required a showing of exposure, i.e. causation, in false
representation claims. Where causation is at issue, a false representation claim stands or falls,
like the strict liability and negligence claims, on a showing of exposure, i.e. that the defendant’s
product caused the plaintiffs injury. (See e.g. Hunter v, Pacifie Mechanical Corp. (1995) 37
Cal. App. 4th 1282, 1285 overruled, in part, on other grounds by Aguilar v. Atlantic Richfield
Co. (2001) 25 Cal. 4th 826, 854, wherein the court stated “Each cause of action [negligence,
strict liability, negligent infliction of emotional distress, false representation and loss of
consortium] is based on the premise that [the plaintiff] came into contact with asbestos or an
asbestos-based product through [the defendant]'s activities, which exposure resulted in his
contracting asbestos-related pleural disease.”)

This prerequisite for establishing that the defendant’s conduct resulted in exposure to

asbestos is further evidenced by the court’s holding in Gatton v. AP. Green Services (1998) 64
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PLAINTIFFS”
COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM ~ ASBESTOSCo 6 I DN HW BB BW NY

Cal. App.4th 688. In Gatton, the plaintiff alleged causes of action for strict liability, enterprise
liability, and false representation as against the defendant for injuries arising out of plaintiff's
alleged exposure to asbestos, Gatton, supra, at 690,
In affirming summary judgment-for the defendant, the court explained that there was:
... [no need to distinguish between the [causes of action.] As the
summary judgment motion placed at issue the common factual

element of whether the asbestos exposure...was caused by [the
defendant].

In fact, in its decision, the court specifically couched the single issue on appeal as: “Was
there a triable issue that {the defendant] caused [the Plaintiffs] exposure to asbestos?” Gatton,
supra, at 690-691, The court concluded that no triable issue existed, as there was no admissible
evidence showing said exposure, and thus, all of the above claims, including false representation
and enterprise liability fail. Gatton, supra, at 697-698,

Plaintiffs’ Complaint does not allege a single specific fact in support of the elements
of a False Representation claim against Graybar. Rather than alleging specific facts that would
satisfy the requisite elements of a False Representation cause of action, Plaintiffs merely assert
general boilerplate legal conclusions devoid of any factual basis and are, therefore, properly
subject to demurrer. Graybar's demurrer to the first cause of action for False Representation
must, therefore, be sustained without leave to amend.

Cc. Plaintiffs' Complaint Fails To State A Cause Of Action For Loss of
Consortium

Beginning with Rodriguez v. Bethlehem Steel Corporation (1974) 12 Cal 4th 382, this
jurisdiction has recognized that a spouse may bring a cause of action for loss of consortium
arising out of an injury suffered by a worker. However, the spouse’s claim is legally as well as
factually dependent upon establishing liability for the physical injuries of the worker. Snyder v.
Michael's Stores (1997) 16 Cal. 4th 91, 99. Thus, a spouse will not prevail without a prior
physical injury to the worker and a finding of liability against the defendant for the injury.

Plaintiffs’ Complaint does not allege a single specific fact in support of the elements

of a Loss of Consortium claim against Graybar. Rather than alleging specific facts that would
RIC335/1083341-1 5

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PLAINTIFFS’
COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM ~ ASBESTOSshow the requisite elements of a Loss of Consortium claim, Plaintiffs merely assert general
boilerplate legal conclusions devoid of any factual basis and are, therefore, properly subject to
demurrer, Graybar's demurrer to the first cause of action for Negligence must, therefore, be
sustained without leave to amend.

dD. Plaintiffs’ Complaint Fails To State A Cause Of Action For Concert of Action

Civil conspiracy is not an independent tort, and it cannot create a duty to the injured party.
It allows tort recovery only against a defendant who owes a duty of care to injured party.
Accordingly, before one can be held liable for civil conspiracy, one must be capable of being
individually liable for the underlying wrong as a matter of law. Chavers v, Gatke Corporation
(2003) 107 Cal.App.4th 606, 611-612.

In Chavers, supra, the court explained at page 614:

... In California the civil conspiracy to commit tortuous acts can,
as a matter of law, only be performed by parties who are already
under a duty to the plaintiff, the breach of which rests upon a
cause of action against them ~- individually and not as
conspirators - in tort. Restated, in cases where the plaintiff
alleges existence of the civil conspiracy among the defendants to
commit tortuous acts, the source of the substantive liability arises
out of a pre-existing legal duty and its breach; liability cannot
arise out of participation in the conspiracy alone. . . {I]t makes
no difference in the analysis whether the underlying duty is
imposed by statute or by common law. A duty, however,
independent of the conspiracy itself, must exist in order for
substantive liability to attach. The proposition we conclude
applied in this case and is dispositive of the point. For on this
record, it is clear that respondent was under no legal duty to Mr

Chavers for the simple reason that plaintiffs could not show that
he was exposed to Gatke’s products.

[Citations omitted. Emphasis added.)

Here, pursuant to the authorities cited, in the absence of any evidence that Plaintiff
ROBERT ROSS worked with or around asbestos-containing products or materials supplied by
Graybar, no legal duty exists, and the claim of conspiracy fails.

Plaintiff may claim that Graybar can still incur liability under a concert of action theory
even though they cannot identify any specific exposure attributable to Graybar as a potential
cause of his injury. This theory is premised on the situation made famous by Summers v, Tice in

which the California Supreme Court shifted the burden to each of the two wrongdoers to prove
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COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM ~ ASBESTOSco Om NW HD FH BR YW HN

that their negligent actions did not injure the plaintiff. (Summers v. Tice (1948) 33 Cal.2d 80.)
The court reasoned that it would be unjust to preclude the plaintiff's recovery for the sole reason
that he could not prove which of two negligent defendants actually shot him, However, the court
in Chavers v. Gatke Corp. rejected such a theory of liability in the context of asbestos liability,
analogizing the predicament of the asbestos defendants to that of the pharmaceutical defendants
in Sindell v, Abbott Laboratories. (Chavers v. Gatke Corp, supra, quoting Sindell v. Abbott
Laboratories, supra, at 26 Cal,3d 605,)
Plaintiffs’ Complaint does not allege a single specific fact in support of the elements
of a Concert of Action claim against Graybar. Rather than alleging specific facts that would show
a the requisite elements of a Concert of Action claim, Plaintiffs merely assert general boilerplate
legal conclusions devoid of any factual basis and are, therefore, properly subject to demurrer.
Graybar's demurrer to the first cause of action for Negligence must, therefore, be sustained
without leave to amend.
E. Plaintiffs! Complaint Fails To State A Cause Of Action For Fraud, Deceit,
Negligent Misrepresentation, Intentional Misrepresentation, and Concealment
As with false representation, Plaintiffs’ claim of fraud fails absent causation. Plaintiffs
rely on Civil Code Sections 1708 through 1710, as the bases for this claim. However, the plain
language of this Section 1709, defining fraudulent deceit, clearly requires a showing of
causation. Section 1709 states:
§ 1709. Fraudulent deceit
One who willfully deceives another with intent to induce him to
alter his position to his injury or risk, is liable for any damage
which he thereby suffers.
{Emphasis added.]

Moreover, the cases interpreting these Sections, clearly support the finding of causation
as a prerequisite to imposing liability based upon fraud and deceit. (See Garcia v. Superior
Court (1990) 50 Cal.3d 728, 737 (holding that a “complete causal relationship” between the
fraud or deceit and plaintiff's damages is required); Committee on Children’s Television, Inc. v.

General Foods Corp. (1983) 35 Cal 3d 197, 219 {holding that an action for fraud or deceit also
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COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM ~ ASBESTOSco Oo fF NKR HH FF WL

no

demands proof of damages caused by misrepresentations or concealment of information); and
Nagy v. Nagy (1989) 210 Cal. App.3d 1262, 1268 (holding that fraudulent representations which
work no damages cannot give rise to an action at law).)

Like negligence and strict liability, fraud claims are governed by tort principles and also
require a showing of causation, i.e., exposure to a defendant’s product, Well recognized under
California law, a complete causal relationship between the fraud or deceit and the plaintiff's
damages is required. Williams v. Wraxall (1995) 33 Cal.App.4th 120. As enunciated by the
Court in City Solutions, Inc. v. Clear Channel Communications, (2004) 365 F.3d 835, “whether
the claim lies in false representation, concealment, or nondisclosure, the elements of fraud giving
rise to the tort action for deceit in California, are (1) misrepresentation; (2) knowledge of falsity;
(3) intent to defraud; (4) justifiable reliance; and (5) resulting damage.” (Emphasis added.) Civil
Code §§1709 and 1710. See also, City of Atascadero v, Merrill Lynch, Pierce, Fenner & Smith
(1988) 68 Cal,App.4th 445 (common law elements of fraud which gives rise to the tort action of
deceit requires causation); Hauter v. Zogarts (1975) 14 Cal.3d 104 (false representation relies on
common law tort principles under Restatement Torts 402B).

In order to prevail on a claim for Fraudulent Concealment, plaintiff must prove that: 1) the
defendant concealed or suppressed a material fact; 2) the existence of a fiduciary relationship
wherein the defendant has a duty to disclose the fact to plaintiff (i.e. a fiduciary relationship or

confidential relationship); 3) the defendant intentionally suppressed the fact with the intent to

defraud plaintiff; 4) plaintiff was unaware of the fact and would not have acted as he did had he
known of the concealed or suppressed fact; and 5) the concealment or suppression of the fact
caused plaintiff fo sustain damages. See e.g. Stokes v. Henson (1990) 217 Cal App.3d 187, 197;
Lee v. Escrow Consultants (1989) 210 Cal.App.3d 915, 925.

Plaintiffs’ Complaint does not allege a single specific fact in support of the elements
of a Fraud, Deceit, Negligent Misrepresentation, Concealment, or Intentional Misrepresentation
claim against Graybar. Rather than alleging specific facts that would show the requisite elements
to support these causes of action, Plaintiffs merely assert general boilerplate legal conclusions

devoid of any factual basis and are, therefore, properly subject to demurrer. Graybar's demurrer
RIC335/1083341 - 8

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PLAINTIFFS’
COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM ~ ASBESTOS—

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to the first cause of action for Negligence must, therefore, be sustained without leave to amend.

KR Plaintiffs' Complaint Fails To State A Claim For Punitive Damages

Any claim for punitive damages requires "clear and convincing" evidence that a defendant
is guilty of “oppression, fraud or malice” in the commission ofa tort. Civil Code §3294(a),

Plaintiffs Complaint does not allege a single specific fact to support any claim for
Punitive Damages against Graybar. Rather than alleging specific facts that would show a
requisite element of any tort claim upon which a punitive damages prayer is based, Plaintiffs
merely assert general boilerplate legal conclusions devoid of any factual basis and are, therefore,
properly subject to demurrer. Graybar's demurrer to the claim for Punitive Damages must,
therefore, be sustained without leave to amend.

YW. CONCLUSION

Graybar’s demurrer to the entirety of Plaintiffs’ instant Personal Injury action should be
sustained without leave to amend.

Dated: January 28, 2011 ARCHER NORRIS

Attomeys fo
GRAYBAR ELECTRI2’ COMPANY, INC.

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COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM ~ ASBESTOS