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  • LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA ASBESTOS document preview
  • LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA ASBESTOS document preview
  • LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA ASBESTOS document preview
  • LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA ASBESTOS document preview
  • LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA ASBESTOS document preview
  • LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA ASBESTOS document preview
  • LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA ASBESTOS document preview
  • LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA ASBESTOS document preview 
						
                                
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                                Law OFFICES OF

COOLEY MANION JONES HAKE KUROWSKI LLP

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William M. Hake, Esq. (State Bar No. 110956)

Melissa E. Macfarlane, Esq. (State Bar No. 239811)

Rachael A. Buckman, Esq. (State Bar No. 263224)
COOLEY MANION JONES HAKE KUROWSKI LLP

201 Spear Street, 18th Floor
San Francisco, California 94105

Tel: (415) 512-4381
Fax: (415) 512-6791
Attorneys for Defendant

EMIL J. WEBER ELECTRIC CO.

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

OCT 07 2010

Clerk of the Court
BY: CHRISTLE ARRIOLA
Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO

LAURANCE HAGEN,
Plaintiff,
v.
ASSOCIATED INSULATION OF
CALIFORNIA; Defendants as Reflected on
Exhibit 1 attached to the Summary Complaint
herein; and DOES 1-8500,

Defendants.

NN a a at a er a ee ee

Case No. CGC-10-275582

DEFENDANT EMIL J. WEBER
ELECTRIC CO.’S NOTICE OF
MOTION AND MOTION TO STRIKE
PORTIONS OF PLAINTIFF’S
COMPLAINT

DATE:
TIME:
DEPT.:

November 9, 2010
9:30 a.m.
220

Complaint Filed: June 2, 2010
Trial Date: TBD

TO PLAINTIFF AND TO HIS ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on November 9, 2010 at 9:30 a.m. or as soon thereafter

as counsel may be heard in Department 220 of the above-entitled court, located at 400

McAllister Street in San Francisco, California, Defendant Emil J. Weber Electric Co. (“ETW”)

will and hereby does bring a motion to strike portions of Plaintiff Laurance Hagen’s (“Plaintiff”)

complaint and, by reference, Plaintiff's Counsel’s Master Complaint (“Master Complaint”) in the

above-entitied action pursuant to California Code af Civil Procedure §§ 436 and 437(a).

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DEFENDANT EMIL J. WEBER ELECTRIC CO.’S NOTICE OF MOTION AND MOTION TO STRIKE
PORTIONS OF PLAINTIFF’S COMPLAINTLaw OFFICES OF
COOLEY MANION JONES HAKE KuROWSKI LLP

Defendant requests that the court strike the following portions of the Master Complaint:

1. The Master Complaint, p. 2, (2, Lines 3-6 that state as follows: “At ail times
herein mentioned, each of the defendants was the agent, servant, employee, and/or joint venturer
of its co-defendants, and each of them, and at all said times, each defendant was acting in the full
course and scope of said agency, service, employment, and/or joint venture.”

2. The Master Complaint, p. 72, 446, Lines 4-8 that state as follows: “Defendants,
their ALTERNATE ENTITIES, and each of them, are liable for the fraudulent, oppressive, and
malicious acts of their ALTERNATE ENTITIES, and each of them and each defendant’s
officers, directors and managing agents participated in, authorized, expressly and impliedly
ratified, and had full knowledge of, or should have known of, the acts of each of their
ALTERNATE ENTITIES as set forth herein.”

3. The Master Complaint, p. 72, (47, Lines 9-13 that state as follows: “The herein-
described conduct of said defendants, their ALTERNATE ENTITIES, and each of them, was and
is despicable, willful, malicious, fraudulent, outrageous, and in conscious disregard and
indifference to the safety, health, and rights of “exposed persons”, including plaintiff herein,
giving rise to plaintiff's claim herein alleged for punitive damages against said defendants.”

4, The Complaint, p. 73, $52, Lines 12-25 that state as follows: “In researching,
manufacturing, fabricating, designing, modifying, testing or failing to test, warning or failing to
warn, labeling, assembling, distributing, leasing, buying, offering for sale, supplying, selling,
inspecting, testing, authorizing, approving, certifying, facilitating, promoting, representing,
endorsing servicing, installing, contracting for installation, repairing, marketing, warranting, re-
branding, manufacturing for others, packaging and advertising asbestos and asbestos-containing
products, defendants, their “ALTERNATE ENTITIES,” and each of them, did so with conscious
disregard for the safety of “exposed persons” who came in contact with said asbestos and
asbestos-containing products, in that said defendants, their “ALTERNATE ENTITIES,” and
each of them, had prior knowledge that there was a substantial risk of injury or death resulting
from exposure to asbestos or asbestos-containing products, including, but not limited to,

asbestosis, other lung damages and cancer. Said knowledge was obtained, in part, from scientific

2
DEFENDANT EMIL J. WEBER ELECTRIC CO.’S NOTICE OF MOTION AND MOTION TO STRIKE
PORTIONS OF PLAINTIFF’S COMPLAINT‘LAW OFFICES OF
COOLEY MANION JONES HAKE KUROWSKI LLP

studies performed by, at the request of, or with the assistance of, said defendants, their
ALTERNATE ENTITIES, and each of them, and which knowledge was obtained by said
defendants, their ALTERNATE ENTITIES, and each of them on or before 1930, and thereafter.”

5. The Master Complaint, p. 74 953, Lines 2-6 that state as follows: “. . . said
defendants, their ALTERNATE ENTITIES, and each of them, knew that members of the general
public and other “exposed persons”, who came in contact with asbestos and asbestos-containing
products, would assume, and in fact did assume, that exposure to asbestos and asbestos-
containing products was safe, when in fact said exposure was extremely hazardous to health and
human life.”

6. The Master Complaint, p. 74 54, Lines 7-21 that state as follows: “With said
knowledge, said defendants, their ALTERNATE ENTITIES, and each of them, opted to
research, manufacture, fabricate, design, modify, label, assemble, distribute, lease, buy, offer for
sale, supply, sell, inspect, service, install, contract for installation, repair, market, warrant, re-
brand, manufacture for others, package and advertise said asbestos and asbestos-containing
products without attempting to protect “exposed persons” from, or warn “exposed persons” of,
the high risk of injury or death resulting from exposure to asbestos and asbestos-containing
products. Rather than attempting to protect “exposed person” from, or warn “exposed persons”
of, the high risk of injury or death resulting from exposure to asbestos and asbestos-containing
products, defendants, their ALTERNATE ENTITIES, and each of them intentionally failed to
reveal their knowledge of said risk, and consciously and actively concealed and suppressed said
knowledge from “exposed persons” and members of the general public, thus impliedly
representing to “exposed persons” and members of the general public that asbestos and asbestos-
containing products were safe for all reasonably foreseeable uses. Defendants, their
ALTERNATE ENTITIES, and each of them, engaged in this conduct and made these implied
representations with the knowledge of the falsity of said implied representations.”

7. The Master Complaint, p. 74, 955, Lines 22-28 to p. 75, Lines 1-5, that state as
follows: “The above-referenced conduct of said defendants, their ALTERNATE ENTITES, and

each of them, was motivated by the financial interest of said defendants, their ALTERNATE

3
DEFENDANT EMIL J. WEBER ELECTRIC CO.*S NOTICE OF MOTION AND MOTION TO STRIKE
PORTIONS OF PLAINTIFF’S COMPLAINTLAW OFFICES OF
COOLEY MANION JONES HakE Kurowsxi LLP

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ENTITES, and each of them, in the continuing, uninterrupted research, design, modification,
manufacture, fabrication, labeling, assembly, distribution, lease, purchase, offer for sale, supply,
sale, inspection, installation, contracting for installation, repair, marketing, warranting, re-
branding, manufacturing for others, packaging, specifying, requiring, mandating, or otherwise
directing and/or facilitating the use of, or advertising of asbestos and asbestos-containing
products. In pursuance of said financial motivation, said defendants, their ALTERNATE
ENTITES, and each of them, consciously disregarded the safety of “exposed persons” and in
fact, were consciously willing and intended to permit asbestos and ashestos-containing products
to cause injury to “exposed persons” and induced persons to work with and be exposed thereto,
including plaintiff.”

8. The Master Complaint p. 158, Prayer, Line 10, that states as follows: “(g) For
exemplary or punitive damages according to proof and applicable law at trial.”

This Motion to Strike is based upon the grounds that these paragraphs of the Complaint
contain allegations which are not drawn in conformity with the laws of this state. This motion is
also made on the grounds that punitive damages cannot be recovered without a specific pleading
of malice, oppression or fraud and there are no specific facts plead showing that this Defendant
engaged in any conduct directed to Plaintiffs that was malicious, oppressive or fraudulent. Thus,
the allegations in the complaint, including Plaintiffs’ prayer for relief, pertaining to punitive
damages are improper and should be stricken.

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DEFENDANT EMIL J. WEBER ELECTRIC CO.’S NOTICE OF MOTION AND MOTION TO STRIKE
PORTIONS OF PLAINTIFF'S COMPLAINTLAW OFFICES OF
COOLEY MANION JONES HAKE KUROWSKI LLP

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This Motion to Strike is based upon this notice, the memorandum of points and
authorities, the accompanying Declaration of Rachael A. Buckman, the records and files of this
case, any matter on which the Court takes judicial notice, and any evidence, documents, and
arguments as may be presented at the hearing. A proposed order has been provided.

Dated: October 7, 2010 COOLEY MANION JONES HAKE
KUROWSKI LLP

By:

William H. Hake, Esq?
Melissa E. Macfarlane, Esq.
Rachael A. Buckman, Esq.
Attorneys for Defendant
Emil J. Weber Electrie Co.

5
DEFENDANT EMIL J. WEBER ELECTRIC CO.’S NOTICE OF MOTION AND MOTION TO STRIKE
PORTIONS OF PLAINTIFF’S COMPLAINT