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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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Laura 1. Korson (SBN - 213679)

SELLAR HAZARD MANNING FICENEC & LUCIA
A Professional Law Corporation

1800 Sutter Street, Suite 460

Concord, CA 94520

Telephone: (925) 938-1430

Facsimile: (925) 256-7508

Email: Ikorson@sellarlaw.com

Attorneys for:
Defendant Western Insulation, Inc.

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

SEP 07 2010

Clerk of the Court
BY: WILLIAM TRUPEK
Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA

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.

Case No,: CGC-10-275582

MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
DEFENDANT WESTERN
INSULATION, INC,’S DEMURRER TO
PLAINTIFF LAURANCE HAGEN’S
UNVERIFIED COMPLAINT

Hearing Date: October 6, 2010
Hearing Time: 9:30 a.m.
Department: 220 (Asbestos)
Judge: Hon. Harold E. Kahn
Trial Date: None Set

Complaint Filed: June 2, 2010

Documents Served and Filed Herewith:
1, Demurrer

2. Notice of Hearing on Demurrer

3. Request for Judicial Notice

4, Proposed Order

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT WESTERN INSULATION,
INC.’S DEMURRER TO PLAINTIFF LAURANCE HAGEN’S UNVERIFIED COMPLAINT

80623

Case No. CGC-10-275582L INTRODUCTION

Defendant Western Insulation, Inc. demurs to plaintiff Laurance Hagen’s Complaint on the
grounds that the Complaint fails to state a cause of action against Western Insulation, Inc. Plaintiff's
Complaint states facts that constitute an impossibility as to Defendant because Defendant did not exist
until nine years after its allegedly wrongful conduct. Therefore, Defendant respectfully requests that
the Court sustain Defendant’s demurrer to the Complaint as it pertains to Defendant in Plaintiffs
causes of action for negligence, strict liability, intentional misrepresentation, and premises liability.

Defendant demurs to Plaintiff's Complaint pursuant to California Civil Code § 3531; California
Code of Civil Procedure §§ 430.10, 430.30, 430.70; California Evidence Code § 452; and case law.
Defendant’s demurrer wiil be based on the notice of demurrer, the demurrer, this memorandum of
points and authorities in support thereof, the request for judicial notice, the proposed order, the Court’s
files and records herein, and such other oral and/or documentary evidence as may be presented to this
Court at, or prior to, the hearing on this demurrer,

Il. STATEMENT OF PERTINENT FACTS

Plaintiff filed his complaint on June 2, 2010 naming Western Insulation, Inc. as a defendant.
Plaintiff's Complaint identifies Defendant as a contractor defendant at the location of AEC — Lawrence
Livermore Laboratory in Livermore, California, building 122 for approximately two to three months in
1967, [See Complaint for personal injury — asbestos, Exhibit C, page 90, lines 6 through 7.] However,
Defendant did not exist prior to November 15, 1976, and Defendant was incorporated with the name
Harold M. Moore Insulation from that date until October 30, 1984, [See Defendant’s Request For
Judicial Notice, Exhibits “A” and “B.”]

Defendant is named as premises owner/contractor liability defendant pursuant to Plaintiff's
causes of action for negligence, strict liability, intentional misrepresentation, and premises liability.
Defendant was not in business at the time that the alleged exposure occurred, and thus Plaintiff’s
causes of action against Defendant are based on a timing of exposure that is impossible.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT WESTERN INSULATION,
INC.’S DEMURRER TO PLAINTIFF LAURANCE HAGEN’S UNVERIFIED COMPLAINT
80623 Case No. CGC-10-275582a A WU BW N

Ti, LEGAL ARGUMENT.

California Code of Civil Procedure § 430.10(e) provides that a complaint is subject to demurrer
when, “The pleading does not state facts sufficient to constitute a cause of action.” To state a valid
claim, plaintiffs must allege facts showing they are entitled to some relief. Gruenberg v. Aetna Ins.
Co. (1973) 9 Cal.3d 566, 572. The facts must state a claim which comprises a legal cause of action;
legal conclusions are improper and insufficient. Wise v. Superior Court (1992) 222 Cal.App.3d 1008.

“We review an order sustaining a demurrer without leave to amend under well-established
rules: “ ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions,
deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially
noticed,’ [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole
and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the
complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained
without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured
by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has
been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable
possibility is squarely on the plaintiff.” California Emergency Physicians Medical Group v.
PacifiCare of California (2003) 111 Cal.App.4th 1127, 1130; Blank v. Kirwan (1985) 39 Cal.3d 311,
318.

“The law never requires impossibilities.” California Civil Code § 3531. “A ‘complaint, to be
sufficient, must contain a statement of facts which, without the aid of other conjectured facts not stated
shows a complete cause of action.”” Hawkins y. Oakland Title Ins. & Guaranty Co. (1958) 165
Cal.App.2d 116, 122. In most cases, general allegations of causation are sufficient. Berkley v. Dowds
(2007) 152 Cal.App.4th 518, 528, As against demurrer, pleadings must be construed most strongly
against pleader, and it must be presumed that pleader has stated facts as favorably to himself as is
possible, Goodfellow v, Barritt (1933) 130 Cal.App. 548. Whether impossibility exists in a given case
is a question of law. Autry v. Republic Productions, Inc. (1947) 30 Cal.2d 144, 157.

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT WESTERN INSULATION,
INC.’S DEMURRER TO PLAINTIFF LAURANCE HAGEN’S UNVERIFIED COMPLAINT
80623 Case No, CGC-10-275582BR WN

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One may not by the mere device of an allegation in a pleading create a duty that otherwise does
not exist. Pascoe v. Southern California Edison Co. (1951) 102 Cal.App.2d 254, The court must
determine whether the plaintiff has shown “in what manner he can amend [the] complaint and how that
amendment will change the legal effect of [the] pleading.” Goodman y, Kennedy (1976) 18 Cal.3d
335, 349, “[Lleave to amend should vof be granted where .. . amendment would be futile.” Vaillette
v. Fireman's Fund Ins. Co. (1993) 18 Cal.App.4th 680, 685.

On general demurrer, the court is entitled to take judicial notice of “official acts” under
California Code of Civil Procedure §§ 430.30(a) and 430.70 and California Evidence Code § 452(c).
Articles of incorporation have been held to be an appropriate subject of judicial notice. Santa Barbara
County Coalition Against Automobile Subsidies v Santa Barbara County Association of Governments
(2008) 167 Cal.App.4th 1229, 1234, footnote 3.

Plaintiff has not met his burden of pleading necessary facts to allege liability as to Defendant
based on the impossibility of the allegations because Defendant was not in business prior to 1976.
Defendant did not even use the business name of Western Insulation, Inc. until 1984 - 17 years afler
the alleged exposure occurred.

Therefore, Defendant requests that the Court sustain its demurrer as to Plaintiff's causes of
action for negligence, strict liability, intentional misrepresentation, and premises liability as they are
alleged against Defendant.

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT WESTERN INSULATION,
INC.’S DEMURRER TO PLAINTIFF LAURANCE HAGEN’S UNVERIFIED COMPLAINT
80623 Case No. CGC-10-275582IV. CONCLUSION

In consideration of the foregoing, defendant Western Insulation, Inc. respectfully requests that
this Court sustain its demurrer as to the causes of action for negligence, strict liability, intentional
misrepresentation, and premises liability as plead against Defendant in plaintiff Laurance Hagen’s
Complaint.

DATED: September 3, 2010 SELLAR HAZARD MANNING FICENEC & LUCIA

RX I. KORSON

For Defendant Western Insulation, Inc.

a

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT WESTERN INSULATION,
INC,’S DEMURRER TO PLAINTIFF LAURANCE HAGEN’S UNVERIFIED COMPLAINT
80623 Case No. CGC-10-275582