Motion-Secondary: JOYCE JUELCH, ET AL VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al

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GEORGE D. YARON, ESQ. (State Bar #96246)
KEITH E. PATTERSON, ESQ. (State Bar #225753)
MICHAEL J. PENG, ESQ. fee Bar #260852)
YARON & ASSOCIATES

601 California Street, 21" Floor

San Francisco, California 94108

Telephone: (415) 658-2929

Facsimile: (415) 658-2930

Attorneys for Defendant
84 LUMBER COMPANY

ELECTRONICALL|
FILED

Superior Court of Califorbia,
County of San Francis

FEB 26 201

Clerk of the Cou
BY: CHRISTLE ARRIO!
Deputy flerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO

JOYCE JUELCH and NORMAN JUELCH, SR.,)
Plaintiffs,
v.
ASBESTOS DEFENDANTS (BP) As

Reflected on Exhibits B, B-1, C; and DOES 1-
8500; and SEE ATTACHED LIST,

Defendants,

Ne ee ee ee eee

CASE NO. CGC-09-275212

MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF 84
LUMBER COMPANY’S MOTION FOR
SUMMARY JUDGMENT, OR, IN THE
ALTERNATIVE, SUMMARY

ADJUDICATION OF ISSUES

Hearing Date: March 18, 2010

Hearing Time: 9:30 a.m.

Depart. No.: 220

Hearing Judge: Hon. Harold E.
Kahn

Date Action Filed: | May 20, 2009

Date Set For Trial: April 5, 2010TABLE OF CONTENTS
TABLE OF AUTHORITIES «200.000 eee tener terre ees ili
L INTRODUCTION 2.200. cee cnet teen eee en eeee 1
I. FACTUAL AND PROCEDURAL HISTORY «22.0000 2 00 cece cece eee eee ee 3
A. Plaintiffs’ Complaint .... 0... cee cee eee tenet eee ences 3
B. Mrs. Juelch’s Discovery Responses 0... 06.0. c cece eee cence tenn ee 3
Cc. Mrs. Juelch’s Deposition Testimony .......... 00... cee teen cee e eee ees 4
D. John Chambers’ Deposition Testimony ........ 0.000. e cece eee eee eee ees 5
E. The Affidavit of Frank Cicero... 0.0 cece eee eee nena 7
F County of San Joaquin Permit Records 2.0.0.0... 00. 7
G. The Evidence Shows That the Joint Compound and Sheetrock Allegedly Used by
Mrs. Juelch and Mr. Chambers Did Not Contain Asbestos in 1978 ............ 8
UL STANDARD OF REVIEW 0... eee eee teeter eter e eee eens 8
A Motion for Summary Judgment .. 2... 0. eee tee eee ene 8
B. Motion for Summary Adjudication... 0.00... cece eee eee eee ene eee 9
Tv. LEGAL ARGUMENT 00... occ nent enn eee e etree teeseereee 10
A. Plaintiffs Cannot Sustain Their Strict Products Liability Cause of Action Against
84 Lumber... cece ene e eee e near eees 10
1. Plaintiffs Cannot Show that Mrs. Juelch Used a Product Sold by 84 Lumber
that Contained a Manufacturing Defect, Was Defectively Designed, and/or
Did Not Include Adequate Warnings or Instructions ................. ii
a Mrs. Juelch’s Alleged Exposure to a Product Sold by 84 Lumber
Prior 01976 00... eee cee teen ete renee ae li
b. Mrs. Juelch’s Alleged Exposure While Constructing the House at
251 Adelbert Avenue ......... 0.00.0 c eee cece eee 12
c. Mrs. Juelch’s Alleged Exposure While Repairing a House in 1976 13
2. There Is No Triable Issue of Material Fact Regarding Causation ....... 13
a. Mrs. Juelch Discovery Responses ..............2000.0000 ee 14
b. Mrs. Juelch’s and Mr. Chambers’ Deposition Testimony ....... 15
3. Plaintiffs Cannot Establish Their Products Liability Cause of Action, if
Predicated Upon a Breach of Warranty Theory, Against 84 Lumber .... 16

GA326S\MSNTOCA wed -i-B. Plaintiffs Cannot Establish Their Negligence Cause of Action Against
S84 Lumber oo. eee enter een e ners 17
1. 84 Lumber Did Not Breach Any Duty of Care Allegedly Owed to
Mrs. Juelch . 0... cee eee ee tee eee e nena 17
2. There Is No Triable Issue of Material Fact Regarding Causation ....... 18
Cc. Plaintiffs Cannot Establish Their False Representation Cause of Action Against
B84 Lumber 2... cette tenner eterna 18
D. Plaintiff Norman Juelch, Sr. Cannot Establish His Loss of Consortium Claim .. 19
Vv. CONCLUSION 20.00. c cece eee tet eben nee 20

GA3265\MSNTOCA.wpd ~ii-TABLE OF AUTHORITIES
Cases
Aguilar v, Atlantic Richfield Co, (2001) 25 Cal.4th . 00.0... cece eee eee 8, 9, 16
Anderson v. Qwens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987 ...........0.0.00055 9,10
Andrews v. Foster Wheeler LLC (2006) 138 Cal. App.4th 96 2.0.0.0... cece eee eee 14, 15
Blain v. The Doctors Company (1990) 222 Cal.App.3d 1048, 1067 ..-........0..0. 0c 19
Chaknova v. Wilbur-Ellis Co, (1999) 69 Cal. App.4th 962 0.0.0... cece cee eee cee eee ee 13-14
Cronin v. J.B.E. Olsen Corp. (1972) 8 Cal. 3d 121 occ eee eee eee eee 10, 13
Dumin v. Owens-Corning Fiberglass (1994) 28 Cal. App.4th 650 2.0.2.0... eee eee eee 13
Fieldstone v. Briggs (1997) 54 Cal App.4th 357 0... cece nents 16
Gatton v. AP. Green Services, Inc. (1998) 64 Cal.App.4th 688 2.0.0.2... eee eee eee eee 10
Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d. 57 0.0... cece cece eee eee 9
Harris v. Belton (1968) 258 Cal.App.2d 595 20.0. e een e eens 18
Hauter v. Zogarts (1975) 14 Cal.3d 104.0... cece cece cece eee nett en ee eene 18
Hunter v. Pacific Mechanical Corp. (1995) 37 Cal.App.4th 1282 0.0... 0.0... cece eee 10, 13
Intrieri v. Superior Court (2004) 117 Cal.App.4th 72.00.00. cece eee nee 9
ishmael y. Millington (1966) 241 Cal. App.2d 520 0.0.0.0 cece cece cece eee eens 17
. Jiminez v. Sears, Roebuck & Co. (1971) 4 Cal.3d 379.00... cece eee 10, 17
Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396 «0.2.2.0. 2.00 cee eee ee 13
Lee v. Electric Motor Division (1985) 169 Cal.App.3d 375 2.00... c cece ence ee 10, 13
Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409 .............00005 10, 13, 18
Rowland vy. Christian (1968) 69 Cal.2d 108.00... eee ene 17

GA3265\MSATOCA pd -iii-bw

aos

Saelzler y. Advanced Group (2001) 25 Cal.4th 763 2.0.2... cece eee ee eee cee 18
Sheward v. Virtue (1942) 20 Cal.2d 410 00. cect nen e ence eee ens 7
Soule v. General Motors Corp. (1994) 8 Cal 4th 548 2.0. cece cence een enee 10
Sparks v. Owens-Illinois, Inc. (1995) 32 Cal.App.4th 461,472 2.0.0... 9
Wennerholm vy. Stanford University School of Medicine (1942) 20 Cal.2d 713 ........... 18-19
Statutes

COP. 3 ABTS oe enn eee n een e teen 1
C.C.P. § 4370, subd. (0) 00. ccc ene eee eter t teen ees 8
C.C.P. § 437c, subd. (C) cece ene tenet e eet e ener renee tenets 8
C.C.P. § 437c, subd. (C1)... cecceceecne eee eet eet e arene 9
C.C.P. § 437c, subd (01) 6 ect enece ee ene eee nee eneteeeeens 9
Treatises

Witken, Summary of California Law; Restatement of the law, Torts, §388 ................ 7

GA3265\MSATOCA.wpd -iv-I.
INTRODUCTION

Plaintiff Joyce Juelch (Mrs. Juelch") filed her Complaint for personal injury, alleging that
she developed lung cancer’ as a result of allegedly being exposed to asbestos through occupational,
para-occupational, and non-occupational sources. Her husband, Norman Juelch, Sr. (“Mr. Juelch”),
is also a named Plaintiff, and alleges a single cause of action for Loss of Consortium.

Mrs. Juelch’s only contention as to 84 Lumber Company (“84 Lumber”) is her belief that,
in “the early 1970s,” she helped her ex-husband, John Chambers (“Mr. Chambers”), build a house
in Stockton, CA, using joint compound and sheetrock purchased from an 84 Lumber store located

in Stockton, CA. However, 84 Lumber did not own or operate a store in the State of California

in “the early 1970s.” In fact, 84 Lumber opened its first store in Northern California in April of
1976, and it did not open its store in Stockton, CA, until June of 1976. Thus, it is impossible for
Mrs. Juelch and/or Mr. Chambers to have purchased products from an 84 Lumber store located in
Stockton, CA in the “early 1970s,” as Plaintiffs have alleged.

Additionally, Mrs. Juelch and Mr. Chambers were each deposed in this case, and both

testified that they had no information or knowledge that any of the materials that they used

to build the house contained asbestos.

Moreover, Mr, Chambers testified that he performed most of the work on the house, not Mrs.

Jucich, He further testificd that Mrs. Juelch was not even present while the tape and joint

compound work was being performed. He stated that, at the time, the two of them were separated,

and he hired a subcontractor to do all of the tape and joint compound work. He testified that

the subcontractor supplied all of the joint compound materials for the home construction, Mr.

Chambers did not even know the brand of joint compound used by the subcontractor.

Plaintiffs’ claims in this case are further refuted by Mr. Chambers, who also testified that the

home at issue was actually built between 1977 and 1979, with most of the construction occurring in

‘in addition to her claim that exposure to asbestos caused her injury, Plaintiff Joyce Juelch had a
significant smoking history. According to a report, written by Plaintiffs’ expert, Dr. R.M. Luros, dated October 2,
2009, from 1965 to December 2008, Plaintiff smoked one-half to two packs of cigarettes daily, for up to an 86-pack
year smoking history. (SSUF 21.)

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1978, not the “early 1970s,” as alleged by Plaintiffs, This time period for the home’s construction
is confirmed by permit records kept by the County of San Joaquin Community Development
Department, which show that much of the home’s construction took place in 1978. Based upon the
testimony of Mr, Chambers and the permit records, any work using joint compound would have been

done sometime between July and August of 1978. However, none of the products at issue

contained asbestos in 1978.

Specifically, Plaintiffs have alleged that Mrs. Juelch and Mr, Chambers used Kaiser Gypsum.
Company, Inc, (“Kaiser”) and/or Hamilton Materials, Inc. (“Hamilton”) brands of tape and joint
compound, while building the house. The evidence shows that any such tape and joint compound
used by Mrs. Juelch and Mr. Chambers would have been purchased in the Summer of 1978.
However, Hamilton stopped using asbestos in their joint compound products in 1977, and Kaiser
stopped using asbestos in their joint compound products in 1975. Accordingly, if any joint
compound was used by Mrs. Juelch and Mr. Chambers during the home’s construction, it would
have been asbestos-free.

Plaintiffs also allege that Mrs. Juelch was exposed to Kaiser brand sheetrock while

constructing the house. However, Kaiser never manufactured its sheetrock with asbestos as an

ingredient. Furthermore, Kaiser did not use asbestos in any of their products after 1977.
Thus, even if the house was built in 1978, and not the “early 1970s,” Plaintiffs still lack

evidence showing that Mrs. Juelch was exposed to asbestos-containing products purchased at an 84

Lumber store, because none of the products at issue contained asbestos.

Lastly, Plaintiffs’ allegations that Mrs, Juclch was exposed to asbestos-containing products
from a home repair project are totally unsupported by Mrs. Juelch’s deposition testimony. At
deposition, Mrs. Juelch never alleged exposure to tape and joint compound products from any home
remodel project. She testified that, during the only home remodel project she could recall
performing, she only hung doors.

As such, there are no triable issues of material fact as to 84 Lumber, and this Court should
grant 84 Lumber’s Motion for Summary Judgment. In the alternative, 84 Lumber seeks separate

adjudication of each of Plaintiffs’ causes of action against 84 Lumber.

GASZ6S\MSIPKA.wpd -2-Th.
FACTUAL AND PROCEDURAL HISTORY

A. Plaintiffs’ Complaint
On May 20, 2009, Mrs. Jueich and her husband, Mr. Juelch, filed their Complaint for

personal injury and loss of consortium against numerous Defendants. (SSUF 1.’ Mrs. Juelch
alleged that she developed lung cancer as a result of occupational, para-occupational, and non-
occupational exposure to asbestos. (/d.) Plaintiffs allege strict liability, negligence, false
representation, and loss of consortium causes of action against 84 Lumber. (/d.)

Exhibit "A" to Plaintiffs’ Complaint, filed therewith and incorporated by reference into
Plaintiffs’ Complaint, alleges that Mrs. Juelch assisted her ex-husband, Mr, Chambers, build a house
in Stockton, CA “in the early 1970s.” (SSUF 2.) The only additional detail provided in Plaintiffs’
Complaint, with respect to the house allegedly built by Mrs. Juelch, is that she “recalls mixing,
applying and sanding asbestos containing KAISER GYPSUM COMPANY, INC. joint and taping
compounds purchased from 84 LUMBER.” (SSUF 3.)

B. Mrs, Juelch’s Discovery Responses

On August 24, 2009, in an attempt to further ascertain the basis for Mrs. Juelch’s claims
against it, 84 Lumber propounded Special Interrogatories upon Mrs. Juclch. (SSUF 4.) Mrs. Jucich
was asked to state all facts — including the dates and names of witnesses of her alleged exposure —
that support her contention that she was exposed to asbestos through products sold by 84 Lumber.
(SSUF 6, 8-10.) In addition, Mrs. Juelch was asked to identify the specific asbestos-containing
products by brand name, manufacturer, or product type, that were allegedly sold by 84 Lumber and
to which she contends she was exposed. (SSUF 6.)

Jn response, in addition to using Kaiser joint and taping compounds while helping Mr.
Chambers build “a house in Stockton, California in the early 1970s,” she claimed that she also used

Hamilton brand joint and taping compounds, similarly purchased from the 84 Lumber Store in

2 ‘The term “SSUE” refers to 84 Lumber’s Separate Statement of Undisputed Material Fact in support of 84
Lumber’s Motion for Summary Judgment, or in the alternative, Summary Adjudication of Issues, served and filed
concurrently herewith. Plaintiffs’ Complaint is not snbmitted by 84 Lumber for the truth of the matters asserted
therein, but is submitted instead to show what Plaintiffs’ contentions are as to 84 Lumber.

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Stockton, CA. (SSUF 7.) Mrs. Juelch also alleged that she used the same materials purchased from
an 84 Lumber store while “performing repair work on another house around 1976.” (/d.)

On August 24, 2009, 84 Lumber also propounded Requests for Production of Documents
upon Mrs, Juelch. (SSUF 5.) She was specifically asked to identify and produce all documents
supporting her contention that she was exposed to asbestos-containing products distributed, sold, or
supplied by 84 Lumber. (SSUF 10 and 14.)

In response, Mrs. Juelch did not identify any responsive documents, and, instead, elected to
cite her Responses to 84 Lumber’s Special Discovery, her Social Security records, her medical
records, her employment records, all other pleadings in this action already on file with the Court, and
all documents in 84 Lumber’s constructive possession. (SSUF 11, 13-15.) Consequently, Mrs.
Juelch has produced no documents showing that she purchased any asbestos-containing products at
any 84 Lumber store. (SSUF 5, 10-15,)

Cc. Mrs. Juelch’s Deposition Testimony

On June 25-26, September 15-18, and November 18-20, 2009, Mrs. Juelch was deposed in

this case regarding, among other things, her work as an insulator between 1980 and 1988, her alleged
secondary and non-occupational exposure through the work ofher husbands, and the home allegedly
built by her and Mr. Chambers in Stockton, CA. (SSUF 18.) Mrs. Juelch was questioned
extensively at her deposition regarding her claims against 84 Lumber. (SSUF 19.)

Based upon Mrs. Jueich’s deposition testimony, 84 Lumber has ascertained that her claims
against 84 Lumber are based solely upon her alleged work with asbestos-containing products
purchased from an 84 Lumber store in Stockton, CA, while allegedly assisting her husband, John
Chambers, build a house at 251 Adelbert Avenue. (SSUF 20-34.)

At deposition, Mrs. Juelch testified that she and Mr. Chambers built a house on Adelbert
Avenue in Stockton, CA, in the early 1970s. (SSUF 20.)

Mrs. Juelch testified that it took one year to build the house. (SSUF 22.) During the home’s
construction, Mrs. Juelch also worked full-time as a nurse and Mr. Chambers worked full time for
a liquor distribution company. (SSUF 23-24.) As such, they built the house on nights and
weekends. (SSUF 25.)

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As to the materials used for the home’s construction, Mrs. Juelch testified that they used only

Hamilton brand, not Kaiser, tape and joint compound products. (SSUF26.) She claimed that she
and Mr. Chambers applied the tape and joint compound, and then sanded the joint compound.
(SSUF 27.) Mrs. Juelch also claimed that they used only Kaiser brand sheetrock for the home’s
construction. (SSUF 26.) Mrs. Juelch testified that she had no information or knowledge that

any of the products allegedly purchased from 84 Lumber for the home’s construction
contained asbestos. (SSUF 69.)

Mrs. Juelch and Mr. Chambers only lived in the house they built on Adelbert Avenue for four
months before she moved out. (SSUF 28.) After that, the couple never got back together, and they
got a divorce in 1978 or 1979. (SSUF 29.)

Besides the construction of the house with Mr, Chambers, Mrs. Juelch testified that the only
other home remodel or construction work she performed involved installing doors ona house at 1982
Adelbert Avenue, the first residence where she and Mr. Chambers lived together after getting
married in 1968. (SSUF 30.) She specifically stated that none of the work at the house at 1982
Adelbert Avenue involved “sheetrock or anything like that.” (SSUF 31.)

She further testified that, except for the time period when she assisted Mr. Chambers build
the house in Stockton, CA, the only other 84 Lumber products she could ever recall working around
were a toilet seat, a toilet roll holder, nails, and lawn seed. (SSUF 32.) She had no information that
she ever worked with or around any other 84 Lumber products at any other time. (SSUF 33.)
Accordingly, other than the “early 1970s” home construction project at issue, she had no information
or knowledge that she used any joint compound or sheetrock materials sold by 84 Lumber at any
other time.

D. John Chambers’ Deposition Testimony

Mrs. Juelch identified her second husband, John Chambers, as a percipient witness in this
case, (SSUF 20.) On January 12, 2010, Mr. Chambers, was deposed in this case regarding his
marriage to Mrs, Juelch, and the house that they allegedly built together. (SSUF 35.)

Mr. Chambers stated that the only house he ever built with Mrs. Juelch was located at 251
Adelbert Avenue in Stockton, CA. (SSUF 36.) They built the house over the course of three years,

GA3265\MSAP&A.wpd 5.between 1977 and 1979. (SSUF 37.) He stated that they “broke ground” on the house in the Fall
of 1977. (SSUF 38.) The home’s framing was performed from 1977 and lasted into 1978, with most
of the home’s remaining construction taking place in 1978, (SSUF 39.)

Mr. Chambers testified that, sometime in 1978, he and Mrs. Juelch separated for about six
months. (SSUF 40.) He said that, during their separation, Mrs. Juelch came around the construction
site less frequently than when they had been together, (SSUF 41.)

As to the construction work at 251 Adelbert Avenue, Mr. Chambers testified that he did a
lot more work than Mrs. Juelch. (SSUF 42.) Mr. Chambers thought that he could build a house,
because he and his father owned a lot of rental properties, and he was “always having to work on
them,” so he “figured” that he could build a house. (SSUF 43.) They built the house at 251 Adelbert
Avemie “payday by payday.” (SSUF 44,)

Mr. Chambers testified that the taping and texturing work with joint compound was
performed in the Summer of 1978. (SSUF 45.) However, he did not perform any of the taping and
joint compound work, because he hired a subcontractor to do that work. (SSUF 46.) Mr. Chambers
further testified that Mrs. Juelch did not perform any work with tape and joint compounds

either, and that she was not even around while this work was being performed. (SSUF 47-48.)

The couple was separated at the time this work was performed. (SSUF 47.) She would only stop
by, after the work was done, to check up on the project from time to time. (SSUF 49.)

Furthermore, Mr. Chambers did not even know the brand of any of the taping or joint
compounds used by the subcontractor at 251 Adelbert Avenue. (SSUF 50.} Similarly, he did not
know where any of the tape and joint compound materials were purchased, because the subcontractor
supplied the materials. (SSUF 51.)

When asked if he had ever heard of the Hamilton brand — the brand of joint compound that
Mrs. Juelch testified they used - Mr. Chambers testified that he was not familiar with Hamilton.
(SSUF 52.) Additionally, Mr. Chambers had no knowledge that Mrs. Juelch had ever worked with
any products made, supplied, or distributed by Hamilton. (SSUF 53.)

As to the sheetrock used for the home’s construction, Mr. Chambers testified that he could

not recall the specific brand of sheetrock used, but believed that it was Kaiser brand. (SSUF 54.)

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This was the only Kaiser product that he could recal] using for the entire home’s construction.
(SSUF 55.) He stated that they hung the sheetrock sometime between the Summer and Winter of
1978. (SSUF 56.)

Finally, Mr. Chambers had no information or knowledge that any of the materials purchased
from 84 Lumber and used in the home’s construction contained asbestos. (SSUF 72.)

E. The Affidavit of Frank Cicero

On February 24, 2010, Frank Cicero, the Executive Vice-President of 84 Lumber, signed an
affidavit stating that 84 Lumber did not operate any stores in California prior to April 1976. (SSUF
57.) The Affidavit provides that 84 Lumber opened its first California store in San Jose, CA in 1976,
and did not open its Stockton, CA store until June 1976. (SSUF 58.) Further, the Affidavit states
that, prior to June 1976, 84 Lumber did not own, lease, or operate any building, supply, lumber, or
hardware store in Stockton, CA. (SSUF 59.) Accordingly, since 84 Lumber did not have any stores
in California prior to April 1976, no persons could have purchased any products at an 84 Lumber
store in California prior to April 1976, (SSUF 60.} Additionally, no persons could have purchased
any products at the Stockton, CA store prior to June 1976. (SSUF 61.)

KF County of San Joaquin Permit Records

Records kept by the County of San Joaquin Community Development Department support
the time frame in which Mr, Chambers testified that he and Mrs. Juelch built the house at 251
Adelbert Avenue, and contradict the “early 1970s” time period, as alleged by Plaintiffs. (SSUF 62.)
The records show that house’s “Rough Frame” was approved by the county inspector on July 17,
1978. (SSUF 63.) The house’s “Insulation” was approved on July 25, 1978. (SSUF 64.) The
“Sheetrock Nailing” was approved on August 12, 1978, (SSUF 65.) Accordingly, since any
sheetrock work would have necessarily been performed after the insulation was approved, the
sheetrock work must have taken place sometime after July 25, 1978. (SSUF 66.) Similarly, any
work with tape and joint compound products would have necessarily been performed only after the
“Sheetrock Nailing” would have been approved. (SSUF 67.) Therefore, any work with tape and
joint compound products would have been done after August 12, 1978. (SSUF 68.)
Mt

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G, The Evidence Shows That the Joint Compound and Sheetrock Allegedly Used
by Mrs. Juelch and Mr. Chambers Did Not Contain Asbestos in 1978

if Mr. Chambers and Mrs. Juelch purchased any joint compound materials for the house’s
construction, they would have done so around August 1978. (SSUF 44, 62-68.) However, Kaiser
stopped using asbestos in their joint compound products in 1975. (SSUF 70.) Likewise, Hamilton
did not use asbestos in any of their joint compound products beyond 1977. (SSUF 53.) Moreover,
in December 1977, the U.S. Consumer Product Safety Commission banned asbestos-containing
patching compounds. (SSUF 77.) Accordingly, Kaiser and Hamilton — the brands of joint
compound at issue — did not contain asbestos in August 1978. (SSUF 44, 53, 62-68, 70, 77.)

With regard to the sheetrock used in the house’s construction, Mrs. Juelch has alleged that

they used Kaiser brand sheetrock. (SSUF 26.) However, Kaiser sheetrock never contained

asbestos as an ingredient. (SSUF 71.) Furthermore, Kaiser did not sell any asbestos-containing
products beyond 1976, (Zd.)
il.
STANDARD OF REVIEW

A. Motion for Summary Judgment

Any party may move for summary judgment in any action or proceeding if it is contended
that the action has no merit or that there is no defense to the action or proceeding. (C.C.P. § 437c(a).)
Summary judgment shall be granted if all the papers submitted show that there are no triable issues
of material fact, and the moving party is entitled to judgment as a matter of law. (C.C.P. § 437e(c);
Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)

For purposes of summary judgment, C.C.P. § 437e(0)(2), provides the following:

A defendant . . . has met his or her burden of showing that a cause of
action has no merit if that party has shown that ene or more elements
of the cause of action .. . cannot be established .... Once that
defendant . . . has met that burden, the burden shifts to the plaintiff
. .. to show that a triable issue of one or more material facts exists as
to that cause of action or defense thereto. The plaintiff... may not
rely upon the mere allegations or denials . . . but, instead, shall set
forth the specific facts showing that a triable issue of material fact
exists .... (Emphasis added.)
A Defendant moving for summary judgment need not conclusively negate an element of the

Plaintiff's cause of action. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at 853.) All that the

GA326S\MSIP&A.wpd -8-Defendant need do is show that at least one element of the cause of action cannot be established by
the Plaintiff, Ud, at 853.) “The defendant has shown that the plaintiff cannot establish at least one
element of the cause of action by showing that the plaintiff does not possess, and cannot reasonably
obtain, needed evidence.” (Id. at 854.) “The motion shall be supported by affidavits, declarations,
admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may
be taken.” (C.C.P. § 437c(b).)

In Aguilar, the court stated, “even though the court may not weigh the plaintiff's evidence
or inferences against the defendants’ as though it were sitting as the trier of fact, it must nevertheless
determine what any evidence or inference could show or imply to a reasonable trier of fact. ... In so
doing, it does not decide on any finding of its own, but simply decides what finding such a trier of
fact could make for itself.” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 856.)

B. Motion for Summary Adjudication

California Code of Civil Procedure Section 437 also allows for summary adjudication “as
to one or more causes of action within an action . . . or one or more issues of duty if the [moving]
party contends ... that the cause of action has no merit .. . or that one or more defendants either
owed or did not owe a duty to the plaintiff or plaintiffs.” (C.C.P. § 437c, subd. (f(1).) A cause of
action has no merit if “one or more of the elements of the cause of action cannot be separately
established, even if that element is separately pleaded.” (C.C.P. § 437c, subd.(o){1).)

A Defendant making a motion for summary adjudication has the initial burden of showing
that the cause of action lacks merit because one or more elements of the cause of action cannot be
established or there is a complete defense to that cause of action. (ntrieri v. Superior Court (2004)
117 Cal.App.4th 72, 81-82.) If the Defendant establishes a prima facie showing that justifies a
judgment in their favor, the burden then shifts to the Plaintiff to make a prima facie showing of the
existence of a triable material factual issue. (/d. at 82.) In meeting this obligation, the Plaintiff may
not rely on the mere allegations of its pleadings, but must set forth the specific facts showing that
a triable issue of material fact exists as to that cause of action. (Ud., citing Aguilar v. Atlantic

Richfield Co. (2001) 25 Cal.4th 826, 849.) There is a triable issue of fact if, and only if, the evidence

would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the

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motion in accordance with the applicable standard of proof. (/d., citing Aguilar, 25 Cal.4th at 850.)

Iv.
LEGAL ARGUMENT

A. Plaintiffs Cannot Sustain Their Strict Products Liability Cause of Action
Against 84 Lumber

Under California law, a manufacturer, supplier, and/or distributor of a defective product is

strictly liable in tort when a product it places in the stream of commerce, knowing that the product
is to be used without inspection for defects, proves to have a defect that causes injury to a human.
being. (Sparks v. Owens-Illinois, Inc. (1995) 32 Cal.App.4th 461, 472; Anderson v. Owens-Corning
Fiberglas Corp. (1991) 53 Cal.3d 987, 994; Greenman vy. Yuba Power Products, Inc. (1963) 59
Cal.2d 57, 62.) :

The essential elements of actionable products liability, are: (1) the Defendant manufactured,
supplied, or distributed an article that was defective; (2) the defect existed when the article left the
Defendant’s possession; (3) the article was used in a manner reasonably foresceable by Defendant;
(4) the defect proximately caused the injury; and (5} the Plaintiff was injured thereby. (Cronin v.
J.B.E, Olsen Corp. (1972) 8 Cal.3d 121, 128-129; Lee v. Electric Motor Division (1985) 169
Cal. App.3d 375, 383.)

The strict liability doctrine is typically invoked for three types of defects: (1) manufacturing
defects, (2) design defects, and (3) warning defects (inadequate warnings or failure to warn). (Soule
v. General Motors Corp. (1994) 8 Cal.4th 548, 560; Anderson, supra, 53 Cal.3d 987, 994;
Greenman, supra, 59 Cal.2d 57, 62.)

Unless Plaintiffs establish that Mrs. Juelch was harmed by a defective product manufactured,
supplied, or distributed by 84 Lumber, that was being used in a reasonably foreseeable manner, and
that such use proximately caused her alleged injuries, all of Plaintiffs’ causes of action based upon

a products liability theory fail as a matter of law. (See Hunter v. Pacific Mechanical Corp. (1995)

3 A product is defective only when “it leaves the seller’s hands, in a condition not contemplated by the
ultimate consumer, which will be unreasonably dangerous to him.” (Canifax v. Hercules Powder (1965) 237
Cal App.2d 44, 53.) Likewise, products must be defective “when they leave the factory.” (Jiminez v. Superior
Court (2002) 29 Cal.4th 473, 480.)

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37 Cal.App.4th 1282, 1289; Gatton v. A.P. Green Services, Inc. (1998) 64 Cal.App.4th 688, 690.)*
As discussed below, Plaintiffs’ Products Liability cause of action must fail, because Plaintiffs have
not produced, and cannot reasonably obtain, any evidence which shows that Mrs. Juelch was exposed
to any defective products sold by 84 Lumber.

1. Plaintiffs Cannot Show That Mrs. Julech Used a Product Sold by 84

Lumber that Contained a Manufacturing Defect, Was Defectively
Designed, and/or Did Not Include Adequate Warnings or Instructions

a, Mrs. Juelch’s Alleged Exposure to _a Product Sold by 84
Lumber Prior to 1976

Here, Plaintiffs’ Products Liability cause of action is predicated upon the contention that Mrs.
Juelch worked with, or around, asbestos-containing products allegedly sold by 84 Lumber. (SSUF
74-76.) Specifically, Mrs. Juelch contends that she was exposed to asbestos-containing products
purchased from an 84 Lumber store in Stockton, CA, while building a house with Mr. Chambers in
the “early 1970s.” (SSUF 75.) Accordingly, Mrs. Juelch’s allegations put the existence of an 84
Lumber store in Stockton, CA between 1970 and 1975, at issuc. However, 84 Lumber did not
operate a store in Stockton, CA until June 1976, (SSUF 131.)

The Affidavit of Frank Cicero, Vice-President of 84 Lumber, establishes that 84 Lumber did
not own, lease or operate any stores in the State of California prior to April of 1976. (SSUF 130.)
In April of 1976, 84 Lumber opened its first store in California, which was located in San Jose, CA.

(SSUF 131.) In June of 1976, 84 Lumber opened the store at issue, in Stockton, CA.(/d.)

Accordingly, since 84 Lumber did not have any stores in Stockton, CA in the “early 1970s,”

no individual, be it Mrs. Juelch, or anyone else, could have purchased any products or materials at
an 84 Lumber store in Stockton, CA, prior fo June of 1976. (SSUF 132, 133.)
Mt

* The Court in Hunter confirmed that the Lineaweaver two-prong test applied equally to a// tort causes of
action alleged by plaintiffs therein, i.e., Negligence, Strict Products Liability, Negligent Infliction of Emotional
Distress, False Representation, and Loss of Consortium. In other words, regardless of the causes of action pled by
Plaintiff herein, if Plaintiff's causes of action are based on the premise that he came into contact with asbestos or
asbestos-related products through 84 Lumber’s activities, which exposure allegedly caused his alleged asbestos-
related injuries, Plaintiff must still plead and prove the necessary elements of exposure and causation in support of
each and every cause of action pled to withstand a motion for summary judgment. (Hunter, supra, 37 Cal.App.4th at
1289.) In Gatton, the Court found that common factual elements to all causes of action pled in an asbestos action
were exposure and causation, (Gation, supra, 64 Cal.App.4th at 690.)

GAB265S\MSAPEA. wpd -11-b. Mrs. Juelch’s Alleged Exposure While Constructing the House at
251 Adelbert Avenue in the Late 1970s

Despite evidence indicated that the house at 251 Adelbert Avenuc was build primarily in
1978, not the “early 1970s,” Plaintiffs’ products liability cause of action must stil! fail, because they
haveno evidence that the Kaiser and/or Hamilton joint compound nor the Kaiser sheetrock contained
asbestos. (SSUF 110-112; 135-141; 146-150.)

First, Mrs. Juelch and Mr, Chamber both testified that they had no information or knowledge

that any of the products allegedly purchased from 84 Lumber contained asbestos. (SSUF 142, 145.)

Second, Mrs. Juelch was not even present at the house while any of the tape and joint

compound work was being performed. (SSUF 118-126.) Furthermore, Mr. Chambers hired

a subcontractor to perform all of the tape and joint compound work, and Mr. Chambers did

not even know the brand of joint compound that the subcontractor used, (SSUF 119, 123.)

Thus, if Mrs. Juelch was not around while the tape and joint compound work was being performed,
Plaintiffs cannot establish that Mrs. Juelch was harmed by such defective products.

Even assuming the jury believes that Mrs. Juelch was somehow involved with the joint
compound work, in spite of all the evidence to the contrary, her products liability action must still

fail, because the tape and joint compound products at issue did not contain asbestos in that

time frame. (SSUF 146-150.)

As discussed above, if Mr. Chambers and Mrs. Juelch purchased any joint compound
materials for the house’s construction, they would have done so around August 1978. (SSUF 117,
135-141.) However, Kaiser stopped using asbestos in their joint compound products in 1975, and
Hamilton did not use asbestos in any of their joint compound products beyond 1977. (SSUF 147,
148.) Moreover, in December 1977, the U.S. Consumer Product Safety Commission banned
asbestos-containing patching compounds. (SSUF 146.) Accordingly, since the Kaiser and Hamilton
brands of joint compounds did not contain asbestos in August 1978, Mrs, Chambers could not have
been exposed to such products. (SSUF 147-148.)

With regard to the sheetrock work, Mrs. Juelch has alleged that they used Kaiser brand

sheetrock, (SSUF 99,) However, Kaiser sheetrock never contained asbestos as an ingredient.

(SSUF 149.) Furthermore, Kaiser did not sell any asbestos-containing products beyond 1976. (SSUF

GIAB26S\MSIP&A. wd -12-150.) As such, Mrs. Juelch could not have been exposed to asbestos from any Kaiser brand
sheetrock allegedly sold by 84 Lumber, and Plaintiffs, therefore, cannot establish that Mrs. Juelch
was harmed by such alleged products purchased from an 84 Lumber store.

G Mrs, Juelch’s Alleged Exposure While Repairing a House in 1976

Mrs. Juelch also alleges that she was exposed to asbestos-containing tape and joint compound
products while she helped repair a house in 1976. (SSUF 80.) However, at Mrs. Chambers’

deposition, she testified that never used tape and/or joint compound products from 84 Lumber at any

other time. (SSUF 101, 103, 105.) Simply put, besides the home construction project discussed
above, Mrs. Juelch had no information that she worked with or around any tape or joint compound
products at any other time, from which she could have been exposed to asbestos. (SSUF 103-106.)

2. There Is No ‘Triable Issue of Material Fact Regarding Causation

To prevail on their products liability cause of action against 84 Lumber, Plaintiffs must also
establish that a defect contained in any product allegedly sold by 84 Lumber proximately caused Mrs.
Juelch’s alleged asbestos-related injury. (Cronin, supra, 8 Cal.3d at 128-129; Lee, supra, 169
Cal.App.3d at 383.) Plaintiffs must show more than a mere possibility that 84 Lumber was the
proximate cause of his alleged asbestos-related injury to establish this element. (Jones v. Ortho
Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402.) Specifically, “plaintiff[s] must still prove
that all deferidants acted tortiously. (Citations omitted.) In the context of an asbestos injury,
plaintiff[s] must still prove exposure to asbestos products . . . supplied by defendants.” (Dumin v.
Owens-Corning Fiberglass (1994) 28 Cal.App.4th 650, 657-58) (emphasis added.) {see also
Lineaweaver y. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1416.)

In Hunter v. Pacific Mechanical Corp., a case specifically addressing asbestos exposure
litigation, the Court clarified the Plaintiffs’ burden on this issue. (37 Cal.App.4th at 1282.) Hunter
held that once a moving defendant shifted the burden of proof by pointing to a plaintiff’s “factually
vague discovery responses,” the plaintiff must “present facts sufficient to demonstrate a material
issue of fact as to whether there was ‘a sufficient factual nexus between the negligent conduct and
the injury’ as required by California law.” Ud. at 1288-89; citing Lineaweaver, supra, 31
Cal App.4th at 1414.) The Hunter Court further stated that the plaintiff must:

GA3ZOS\MSIP&A.wpd -13-produce facts tending to show that . . . [Defendant’s] asbestos-related activities

occurred with sufficient frequency and regularity in locations from which asbestos

fibers could have traveled to . . . [Plaintiffs] work area so that it was a reasonable

medical probability that the exposure to [Defendant’s] asbestos-related activities was

a substantial factor in causing . . . [Plaintiff's] injuries. (/d.) (Emphasis added.)

Thereafter, in Chaknova v. Wilbur-Ellis Co., the Court expanded on the analysis set forth in
Hunter. (Chaknova v. Wilbur-Ellis Co, (1999) 69 Cal. App.4th 962.) The Chaknova Court continued
to cite this case with approval, stating:

[Defendant] was not required to come forward with evidence of its own to

affirmatively demonstrate that Hunter could not have been exposed to asbestos as a

result of [Defendant’s] activities. Rather it was enough to show through factually

vague discovery responses that . . . [Plaintiff] lacked any significant probative

evidence on the critical element of causation. Upon this showing, the burden shifted

to the plaintiff “to show the existence of a triable issue of material fact as to

causation.” {/d. at 975; citing Hunter) (emphasis added.)

84 Lumber submits that Plaintiffs cannot prove that 84 Lumber contributed to Mrs. Juelch’s
alleged asbestos exposure. As shown in detail above, Plaintiffs cannot prove any defect in any
product allegedly sold by 84 Lumber. (SSUF 74-76; 91-150.) Mrs, Juelch’s deposition testimony
clearly establishes that Plaintiffs’ allegations against 84 Lumber are simply unfounded, as her
testimony contradicts her own allegations and the deposition testimony of Mr. Chambers. (SSUF
75; 91-129.)

Lacking any evidence that Mrs. Juelch was exposed to any defective product purchased at
an 84 Lumber store, Plaintiffs cannot establish that 84 Lumber proximately caused Mrs. Juelch’s
alleged asbestos-related injury.

a Mrs. Juelch’s Discovery Responses

As the Court of Appeal for the First Appellate District recently held, factually devoid
discovery responses do not create a triable issue of material fact regarding causation. (Andrews v.
Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 102-103.)

In her Response to 84 Lumber’s Special Interrogatories, Mrs. Juelch claimed that she used
Hamilton and Kaiser joint and taping compounds while building the house with Mr. Chambers.
(SSUF 80.) As previously discussed, however, these allegations are wholly unfounded, as 84
Lumber could not have sold any such asbestos-containing products to this house project, whether

in the “early 1970s” or 1978. (SSUF 74-76; 130-142; 146-150.)

GAI2G\MSAPRA.Wwpd -14-Also, in response to 84 Lumber’s Requests for Production of Documents, Mrs. Juelch failed
to produce any documents showing that she was exposed to any defective products sold by 84
Lumber, (SSUF 78, 86-90.)

On the whole, Mrs. Juelch’s vague and factually devoid discovery responses show that she
has no evidence that she was exposed to asbestos-containing products sold by 84 Lumber. (SSUF
80-90.) Contrary to what Mrs. Juelch may assert in opposition to the present motion, the answers
she provided and other documents she cited do not raise disputed issues of material facts by
themselves. (Andrews, supra, 138 Cal.App.4th at 106.)

As the Court in Andrews stated, “if Plaintiffs respond to comprehensive interrogatories
seeking all known facts with boilerplate answers that restate their allegations, or simply provide
laundry lists of people and/or documents, the burden of production will almost certainly be shifted
to them once defendants move for summary judgment and properly present plaintiffs’ factually
devoid discovery responses.” (id. at 107.)

b. Mrs. Juelch’s and Mr. Chambers’ Deposition Testimony

Mrs. Juelch and Mr. Chambers both testified that they had no information or knowledge

that any products purchased from 84 Lumber for the home’s construction contained asbestos.

(SSUF 142.)

Nonetheless, Mrs. Juelch has provided deposition testimony in this case alleging that she and
Mr. Chambers built the house in the early 1970s using 84 Lumber products, (SSUF 91-93.)
However, as previously discussed, 84 Lumber did not open a store in Stockton, CA until June 1976.
(SSUF 130-134.) Thus, it would have been impossible for Mrs. Juelch and/or Mr. Chambers to have
used any products, asbestos-containing or not, sold by an 84 Lumber store in Stockton, CA.

Even ifa jury adopt the time frame for the home’s construction as asserted by Mr. Chambers,
and supported County of San Joaquin permit records, Mrs, Jucich still lacks evidence from which
ajury could infer that she was exposed to asbestos-containing products sold by an 84 Lumber store.

As discussed above, Mr. Chambers testified that Mrs. Juelch was never present while the
joint compound work was being performed at 251 Adelbert Avenue, because he hired a

subcontractor to perform all that work. (SSUF 119-127.)

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Second, even ifthe jury was to believe that Mrs. Juelch was somehow involved with the joint
compound work, Hamilton — the brand of joint compound that Mrs. Juelch testified they used —

stopped using asbestos in all of its joint compound products by 1977, the year before when Mrs.

Juelch and Mr. Chambers would have purchased such products. (SSUF 99-100; 135-141; 147.)
Finally, as to the Kaiser sheetrock allegedly used in the home’s construction, Kaiser never

used asbestos as an ingredient in its sheetrock. (SSUF 149.)

As to the house allegedly remodeled by Mrs. Juelch in 1976, Mrs. Juelch’s own deposition
testimony refutes her own allegation that she was exposed to such asbestos-containing products
during any other home repair/construction project. (SSUF 75; 91-129.)

Thus, as shown through Mrs. Juelch’s and Mr. Chambers’ deposition testimonies and Mrs.
Juelch’s devoid discovery responses, Mrs, Juelch has not presented sufficient evidence that would
support a reasonable inference to a rational trier of fact that her alleged asbestos-related injury was
caused by any act of 84 Lumber. (Aguilar, supra, 25 Cal.4th at 856.) Therefore, Plaintiffs’ products
liability cause of action against 84 Lumber is lacking in causation.

3. Plaintiffs Cannot Establish Their Products Liability Cause of Action if
Predicated Upon a Breach of Warranty Theory Against 84 Lumber

California law is clear that contractual privity is required for claims of breach of express and
implied warranties. (Fieldstone v. Briggs (1997) 54 Cal.App.4th 357, 371.) Here, Plaintiffs may
allege a Products Liability cause of action predicated upon a breach of warranty theory, to the extent
that Plaintiffs allege, in connection with the manufacture, sale, supply, delivery, handling and use
of the asbestos-containing products, 84 Lumber warranted that these asbestos products were
merchantable, when in fact they were not. At their depositions, Mrs. Juelch and Mr, Chambers
testified that they personally purchased various materials from the 84 Lumber store in Stockton, CA.
(SSUF 76; 78.) Consequently, Plaintiffs’ claims arise out ofa contractual relationship between Mrs.
Juelch and Mr. Chambers. However, if predicated on a breach of warranty theory, Plaintiffs’
Products Liability cause of action must fail as a matter of law.

At their depositions, Mrs. Juelch and Mr. Chambers both testified that they did not know if

any of the products they purchased from 84 Lumber contained asbestos. (SSUF 142; 145.)

Moreover, both Mrs. Juelch and Mr. Chambers testified that 84 Lumber never made any warnings

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or representations to them regarding the character or quality of any products allegedly sold by 84
Lumber. (SSUF 143-144.) Plaintiffs simply do not possess, and cannot reasonably obtain, any
evidence establishing that 84 Lumber made any affirmations to Mrs. Juelch or Mr. Chambers
regarding the character or quality of any products allegedly sold by 84 Lumber, (SSUF 142-145.)
Accordingly, Plaintiffs’ Products Liability cause of action, if predicated upon a breach of warranty
theory, must fail as a matter of law.

B. Plaintiffs Cannot Establish Their Negligence Cause of Action Against 84
Lumber

In order to prove their Negligence cause of action against 84 Lumber, Plaintiffs must
establish that: (1) 84 Lumber designed, manufactured, supplied, installed, inspected, or repaired a
product; (2) 84 Lumber was negligent in the design, manufacture, supply, installation, inspection,
or repair of the product; (3) Mrs. Juelch was harmed by the product; and (4) 84 Lumber’s negligence
was a substantial factor in causing Mrs. Juelch’s harm. (Jiminez v. Sears, Roebuck & Co. (1971) 4
Cal.3d 379; Sheward y. Virtue (1942) 20 Cal.2d 410; Witken, Summary of California Law;
Restatement of the law, Torts, § 388.)

1 84 Lumber Did Not Breach Any Duty of Care Allegedly Owed to Mrs.
Juelch

The basic precept of tort law is that “the existence of a duty to use care toward an interest of
another that enjoys legal protection against unintentional invasion must exist. (Restatement of the
Law, Second, Torts, § 281; Cal. Civ. Code § 1714; Raymond v. Paradise Unified School Dist. (1963)
218 Cal.App.2d 1, 7.) Whether a duty is owed in a particular case is a question of law to be decided
by the Court. (Nymark v. Heart Fed. Savings & Loan Assn. (1991), 231 Cal.App.3d 1089, 1095;
Ishmael v. Millington (1966) 241 Cal.App.2d 520, 525.) As to breach of duty, a party is only liable
to those injured for its failure to exercise reasonable care under the circumstances. (Rowland v.
Christian (1968) 69 Cal.2d 108, 112; Restatement Second of Torts, Section 328B.)

Assuming the Court finds that 84 Lumber owed Mr. Juelch a duty of care, due to the fact that
84 Lumber had a store in Stockton, CA in the late 1970s, Plaintiffs cannot show that 84 Lumber
breached any duty of care owed to Mrs. Juelch.

As shown above, the evidence reveals that the products Mrs. Juelch and/or Mr. Chambers

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would have allegedly purchased at an 84 Lumber siore for the construction of their home, sometime
in the summer of 1978, did not contain asbestos. (SSUF 176-177, 194; 204-206; 212-218; 221-225.)
Accordingly, Plaintiffs cannot show that 84 Lumber failed to use the requisite amount of care that
a reasonably careful seller would use under similar circumstances. (SSUF Jd.) Thus, given that 84
Lumber did not expose Mrs. Juelch to a foreseeable risk of harm, the evidence shows that 84 Lumber
did not breach its alleged duty of care. Ud.)

2. There Is No Triable Issue of Material Fact Regarding Causation

Plaintiffs must also show that Mrs. Juelch’s exposure t