Motion-Secondary: LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA

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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) ELECTRONICALLY
COOLEY MANION JONES HAKE KUROWSKI LLP FILED
a poet Street, A oh Fo or Superior Court of California,
rel: mal 54 12-4381 County of San Francisco
Fax: (415) 512-6791 OCT 07 2010
Clerk of the Court
Attorneys for Defendant BY: JUANITA D. MURPHY
EMIL J, WEBER ELECTRIC CO. Deputy Clerk

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

LAURANCE HAGEN, Case No. CGC-10-275582

Plaintiff, DEFENDANT EMIL J. WEBER

ELECTRIC CO,’S MEMORANDUM OF
v. POINTS AND AUTHORITIES IN
SUPPORT OF ITS DEMURRER TO
ASSOCIATED INSULATION OF PLAINTIFF’S COMPLAINT FOR
CALIFORNIA; Defendants as Reflected on PERSONAL INJURY

Exhibit 1 attached to the Summary Complaint
herein; and DOES 1-8500,

Hearing Date: November 9, 2010

Time: 9:30 aam.
Defendants. Bent : 220 am

Complaint: June 2, 2010

Trial Date: TBD

L INTRODUCTION

Plaintiff, Laurance Hagen (“Plaintiff”) merely alleges exposure to “asbestos” or
“asbestos-containing products,” in the generic sense, and then names a host of entities, including
Defendant Emil J. Weber Electric Co. (“ETW”), as defendants. Such sweeping, global, and
generalized allegations are insufficient. Bockrath v. Aldrich Chem. Co. (1999) 21 Cal.4th 71;
Code of Civil Procedure (“CCP”) § 430.10(e)-(f). Additionally, since Plaintiff makes no specific
allegations against EJW, his complaint fails to give notice of any claims. CCP § 430.10(e)-(f).
Asbestos cases are not entitled to lenient pleading requirements. The Court must serve as a

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DEFENDANT EMIL J. WEBER ELECTRIC CO.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS DEMURRER|
TO PLAINTIFF'S COMPLAINT.LAW OFFICES OF
COOLEY MANION JONES HAKE Kurowski LLP

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strong gatekeeper against cases founded on speculative, boilerplate allegations. For these
reasons, EJW respectfully urges the Court to sustain this demurrer
I. STATEMENT OF FACTS

Plaintiff filed his complaint on June 2, 2010, naming more than 200 defendants and Does
1-8500. Exhibit A at pp. 10-13.! Plaintiff's complaint incorporates the general allegation of the
Brayton Purcell Master Complaint for Personal Injury [and Loss of Consortium] — Asbestos
(“Master Complaint”). Exhibit A at p. 1:18-19, Exhibit B.

Plaintiff's complaint utilizes a “check the box” system for suing numerous defendants,
with each box corresponding to the general allegations of the Master Complaint. Exhibit A at p.
2, Exhibit B. Each box represents a different cause of action with each column representing a
different “category” of defendant. Exhibit A at p. 2. Plaintiff's own Exhibits B-N, attached to
Plaintiff's complaint, identify the specific defendants in each “category.” Exhibit A at pp. 30-
111. In regards to EJW, Plaintiff checked boxes that correspond with Exhibits B-1 and C.
Exhibit A at p. 2. According to the Master Complaint, Exhibit B-1 is reserved for
“subcontractors,” and Exhibit C for “premises owner/contractor liability defendants,” again.
lacking specific allegation against any particular defendant. Exhibit B at pp. 160-161. These
designations also correspond to the following causes of action: “Negligence,” “Strict Liability,”
and “Premises Ownet/Contractor Liability.” Exhibit A at p. 2. Plaintiff further seeks punitive
damages. Exhibit B at p. 158.

However, though Plaintiff groups EJW amongst different classes of defendants, alleges
multiple causes of action, and seeks exemplary damages, none of his allegations specifically
address EJW. Plaintiff's complaint fails to plead: (1) ETW’s connection with any asbestos-
containing products, either generically identified or specifically identified by brand name, model,
manufacturer, or supplier, (2) how, when, and where EJW purportedly exposed Decedent to
asbestos, (3) how EJW acted negligently, (4) how EJW manufactured, distributed, sold, or
supplied a defective product (or is liable under any other theory of products liability), (5) how

' All exhibits are attached to the accompanying Request for Judicial Notice in Support of Defendant Emil J. Weber
Electric Co.’s Detaurrer to Plaintiff's Complaint.
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DEFENDANT EMIL J, WEBER ELECTRIC CO.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF iTS DEMURRER
TO PLAINTIFF'S COMPT_AINTLAW OFFICES OF
COOLEY MANION JONES HAKE KurowskI LLP

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EJW is liable as a “premises owner/contractor,” and (6) how EJW acted with “oppression, fraud,
or malice,” thus warranting a claim for punitive damages (Civ. Code (“CC”) § 3294). Exhibit A,
Exhibit B.

Similarly, the Master Complaint makes no specific allegations against EJW and fails to
identify any specific asbestos-containing products. Instead, it is replete with genetic references
to “asbestos” and “asbestos-containing products.” For example, Plaintiff's 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; 4:10-11; 60:4-5; 60:12-13), “asbestos containing products” (p.
65:16), “asbestos be used in some products” (p. 65:19), “asbestos and asbestos-containing
products” (pp. 65:22; 70:16-17, 18, 23; 71:3-5), “asbestos corporations” (p. 66:8), “asbestos
fibers” (pp. 70:12, 14, 27; 71:10), and “asbestos and products containing asbestos and related
products and equipment” (p. 70:5-6). The closest Plaintiff comes to naming a specific product is
the imprecise allegation that a// 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. 70:5-9, But this sweeping, global 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 “Products Liability” only identifies
“asbestos and asbestos-containing products” (72:26; 73:1, 16-17, 19, 28; 74:3-4, 5, 10-11, 12-13,
14-15, 18-19; 74:28-75:1; 75:3, 7-8, 8-9, 19-20), “asbestos fibers” (p.73:2), “asbestos or
asbestos-containing products” (pp. 73:21; 74:1; 78:12), “asbestos and their asbestos-containing
products” (p. 78:14-15), “asbestos be used in some products” (p. 75:15), and “asbestos and

various asbestos-containing products” (p. 78:5-6).° Plaintiff's third cause of action for “False

2 More specific allegations are levied against certain classes of defendants that expressly exclude EJW. These
include friction product defendants (Exhibit B, at pp. 64:12-65:13), the grinding wheel defendants (pp. 67:9-69:18),
and the boiler insurance inspection defendants (p. 69:19-70:3).
* As with Plaintiff's first cause of action, Plaintiff's second cause of action includes more specific allegations against
the grinding wheel defendants—~a group that excludes TPC, Inc. Exhibit B, at pp. 75:25~-78:4

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DEFENDANT EMIL J. WEBER ELECTRIC CO.'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS DEMURRER)
TO PLAINTIFE?S COMPT.AINTLAW OFFICES GF
COOLEY MANION JONES HAKE KuROWSKI LLP

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Representation” only identifies “asbestos and asbestos-containing products.” Exhibit C, at p.
79: 8-9, 12, 17, 20, 22.

Finally, Plaintiff's fifth cause of action for “Premises Owner / Contractor Liability” goes
farther, but it is not specific to EJW 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
substances” (pp. 99:21; 100:12-13). In sum, the Master Complaint makes no specific allegations
against EJW and fails to identify any specific asbestos-containing products. In total, Plaintiff
levies these same sweeping, global allegations against more than 200 defendants. Exhibit A, at
pp. 10-13.

TH. 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 state facts sufficient to constitute a
cause of action. CCP §§ 430.10(e)-(£); 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).
Mt

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DEFENDANT EMIL J. WEBER ELECTRIC CO,’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS DEMURRER,
TO PLAINTIFFS COMPLAINTLAW ORFICES OF
COOLEY MANION JONES HAKE KUROWSKI LLP

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B, Plaintiff Must Identify the Specific Asbestos-Containing Products
Attributable to EJW That Allegedly Caused Plaintiff’s 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 alt” 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.

(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 (untike this one) governed by the
principle of liability based on market share for a uniform product
that we outlined in Sindell v. Abbott Laboratories (1980) 26 Cal.
3d 588, 612 [163 Cal. Rptr. 132, 607 P.2d 924, 2 A.L.R.4th 1061],
he roust 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-Illinois, Inc. (1997) 16 Cal.
4th 953) (emphasis added) (footnote omitted); see also Tellez-Cordova v. Campbell-
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 through a ventilation system. Jd. at pp. 77-79 & fn.
1. However, plaintiff failed to specifically identify and connect each defendant’s product with
each alleged exposure. Jd Plaintiff simply referred to “products” and to “chemicals and
chemical ingredients.” Jd. 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. It is not here. It is a global claim. Everybody is

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DEFENDANT EMIL J, WEBER ELECTRIC CO."S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS DEMURRER|
TO PLATNTIFE’S COMPLAINTLAW OBFICES OF
COOLEY MANION JONES HAKE KUROWSKI LLP

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.” Jd. (emphasis added).
The Court cautioned:

The law cannot tolerate lawsuits by prospecting plaintiffs who sue
roultiple 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, at p. 81.

It is not enough that the Court or defendants understand what Plaintiff is 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 sum, each defendant manufactured a chemical product that, as
used or foreseeably misused, caused injury. [{] In light of Rutherford, supra, 16 Cal.Ath 953,
the foregoing allegations were 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 Plaintiff's Complaint and Brayton Purcell’s Master Complaint Do Not
Satisfy Bockrath’s Product Identification Requirements,

To meet Bockrath’s basic pleading requirements, Plaintiff must connect EJW with
specific asbestos-containing products. Plaintiff “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. Plaintiff fails on both counts, rendering
his entire complaint insufficient.

Plaintiff's complaint (and by extension the 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.” /d. at p. 256. Similarly, “asbestos-containing products”

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DEFENDANT EMIL J. WEBER ELECTRIC CO.’8 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF [T$ DEMURRER|
TO PLAINTIFFS COMPLAINTLAW OFFICES OF
COOLEY MANION JONES HAKE KUROWSKI LLP

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encompasses an extremely large and diverse class of products. Jd. (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”).

Plaintiff fails to identify and connect any specific products or brand names with ETW.
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, Plaintiff's first cause of action for
“Negligence” contains the imprecise allegation that “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.
70:5-9, 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 requires specificity that Plaintiff fails to establish. He does not (1) “identify
each product” that allegedly caused his injury, (2) “allege that each toxin [Plaintiff] absorbed
was manufactured or supplied by a named defendant,” or (3) connect any specific products or
brand names with EIW. Bockrath, supra, 21 Cal.4th at p. 80. The Court should sustain ETW’s
demurrer on the grounds that Plaintiff's complaint is uncertain and fails to state facts sufficient to
constitute a cause of action, CCP § 430.10(e)-(f).

D. Plaintiff Makes No Direct Allegations Against LJW and Consequently Fails
to Give Notice of the Facts Underlying Any Claims.

At the pleadings stage, Plaintiff must allege that ETW 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

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DEFENDANT EMIL J. WEBER ELECTRIC CO," MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS DEMURRER,
PO PLAINTIFF'S COMPLAINTLAW OFFICES OF
COOLEY MANION JONES HAKE KuROWSKI LLP

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fishing expedition (Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 384-386), but, to
continue the analogy, Plaintiff must first identify the fish’s location. Bockrath defines that
requirement. Plaintiff must investigate his claims before filing suit and allege specific facts
against EJW. Here, Plaintiff's complaint is overly broad, ill-defined, and uncertain.

Plaintiff describes no EJ W-specific conduct whatsoever, He fails to make any allegations
about: (1) ETW’s connection with any asbestos-containing products, either generically identified
or specifically identified by brand name, model, manufacturer, or supplier, (2) how, when, and
where EJ W purportedly exposed Plaintiff to asbestos, (3) how EJW acted negligently, (4) how
EJW manufactured, distributed, sold, or supplied a defective product (or is liable under any other
theory of products liability), (5) how EJW is liable as a “premises owner/contractor,” and (6)
how EJW acted with “oppression, fraud, or malice,” thus warranting a claim for punitive
damages (CC § 3294). Exhibit A, Exhibit B.

Since no direct allegations are provided, EJW is purportedly expected to analyze
Plaintiff’s entire 171 page Master Complaint to determine which allegations apply to ETW, as
opposed to the other approximate 200 defendants sued thus far. Exhibit A, at pp. 10-13. In
effect, Plaintiff accuses ETW of committing nearly every conceivable act that potentially exposed
Plaintiff. Of course, as discussed above, Plaintiff also makes such sweeping allegations without
identifying 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 Ath at p. 78.

Plaintiff’s lack of any EJW-specific allegations must surely be insufficient. Plaintiff fails
to give EJW reasonable notice of the facts underlying any claims brought against it. Merely
imparting that this case is an “asbestos action” does not suffice. Plaintiff's complaint is
uncertain and fails to state facts constituting any cause of action. CCP § 430.10(e)-(f).

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DEPENDANT EMIL J. WEBER ELECTRIC CO.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS DEMURRER
TO PTATNTIFE'S COMPLAINTLAW OFFICES OF
COOLEY MANION JONES HAKR KuROWSKI LLP

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Iv. CONCLUSION

For these reasons, EJW respectfully urges the Court to sustain its demurrer. 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: October 7, 2010 COOLEY MANION JONES HAKE

KUROWSKI LLP

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

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DEFENDANT EMIL J. WEBER ELECTRIC CO.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS DEMURRER|
TO PLAINTTFFE’S COMPLAINT