Motion-Secondary: RUFUS ALEXANDER VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al

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                                Gordon & Rees LLP
Embareadera Center West

1 || MICHAEL §. PIETRYKOWSKI (SBN: 118677)
CHRISTOPHER D. STRUNK (SBN: 214110)

2 || GORDON & REES LLP ELECTRONICALLY
Embarcadero Center West FILED
3 |) 275 Battery Street, Suite 2000 Superior Court of California,
San Francisco, CA 94111 County of San Francisco
4 || Telephone: (415) 986-5900
Facsimile: (415) 986-8054 OCT 22 2010
6 . BY: JUDITH NUNEZ
Attorneys For: Defendant Deputy Clerk
6 | THE BUDD COMPANY
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8 SUPERIOR COURT — STATE OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO
10 || RUFUS ALEXANDER, ) CASE NO, CGC-08-274719
)
ti Plaintiff, ) DEFENDANT THE BUDD
. ) COMPANY’S MEMORANDUM OF
= 12 ) POINTS AND AUTHORITIES IN
3 v. ) SUPPORT OF ITS MOTION FOR
& 3 ) JUDGMENT ON THE PLEADINGS
g )
28 14 || ASBESTOS DEFENDANTS (B*P) ) Date: November 18, 2010
ae ) Time: 9:30 a.m.
Seg 15 ) Dept: 220
ce Defendants. ) Judge: Hon. Hon. Harold E. Kahn
i6 )
yo.
17 ) Trial Date: None set
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BUDD'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF ITS MOTION FOR JUDGMENT ON THE PLEADINGSGordon & Rees LLP

Embarcadero Center West
273 Battery Street, Suite 2000

San Francisco, CA $

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TABLE OF CONTENTS

INTRODUCTION ...ccesccccccccstssecseesseesucsstasecssecssseesnecsscsnssitscsenssusssecsensscssesrarsnessseeninanserrene 1

STATEMENT OF PACTS .

ARGUMENT voices ees ceseasesecscesaseeseenssssiessescaescsrcnmsvesissssassenssdsensiensssssnssesicaseaneieen 1

A This Court Has the Authority to Grant A Motion for Judgment On The
Pleadings...

B. Plaintiffs Has Failed to State a Claim Against Budd... ee eter
CONCLUSION... ecseccssesssessrscsssnesseresrcnsneceacensssenrersnrsnssseaversasconmesnecsscseneeneectasesnnaveanesninesead 5

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BUDD'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF ITS SUMMARY JUDGMENT MOTIONGordon & Rees LLP

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L INTRODUCTION
Plaintiff RUPUS ALEXANDER, filed this action claiming that THE BUDD COMPANY

(“BUDD") is responsible for plaintiffs alleged exposure to asbestos during the course of his
career as a pneumatic tool operator and metals inspector at various shipyards over his career,
from which plaintiff alleges to have contracted asbestosis. However, plaintiff's Complaint
makes no mention whatsoever of THE BUDD COMPANY, or the specifics of any allegations
against it. Indeed, it has not made out a single, cognizable claim against BUDD. Further, given
that plaintiff has refused to attend his deposition, it will be impossible for plaintiff to amend his
Complaint so as to remedy this defect. Accordingly, BUDD’s motion should be granted.
I. STATEMENT OF FACTS

Plaintiff filed his Complaint against The Budd Company on July 1, 2008. In his
Complaint, plaintiff claims to have been exposed to asbestos for which BUDD is responsible. (-
See Request for Judicial Notice (*RFJN”), Exhibit 1.) On October 30, 2009, the
Brayton#Purcell firm’s motion to be relieved as counsel for plaintiffs was granicd. (See Order
granting motion to be relieved as counsel, RFJN, Exhibit 2.) At an MSC on August 4, 2010, in
an effort to give plaintiff an opportunity to retain counsel, the Court continued plaintiff's
deposition to October 18, 2010 and set a further CMC on November 18, 2010, and advised all
counsel to notice any and all motions against plaintiff at that time, (RFJN, Exhibit 3.)

Plaintiffs’ Complaint contains no specific allegations against BUDD, but merely
boilerplate. It does not allege exposures to any BUDD products at any location at any time, and
plaintiffs’ refusal to attend his deposition precludes plaintiffs from making any such showing at a
later date.

The instant motion follows.

TL = ARGUMENT

A. This Court Has the Authority to Grant A Motion for Judgment On The
Pleadings

In California, there are two distinct vehicles for bringing a motion for judgment pleadings
~ one statutory, and one non-statutory (See Stoops v. Abbassi (2002) 100 Cal_App.4th 644, 650).
“le

BUDD’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF ITS SUMMARY JUDGMENT MOTIONGordon & Rees LLP
Embarcadero Center West

1 || A non-statutory motion, such as the one here, “may be made at any time either prior to the trial

2 | or at the trial itself. [Citation.]” (Stoops, supra, 100 Cal-App.4th at 650.) “Such motion may be
3 {| made on the same ground as those supporting a general demmurrer, /.¢., that the pleading at issue
4 || fails to state facts sufficient to constitute a legally cognizable claim or defense.” (/bid.)

5 Since “ihe motion for judgment on the pleadings performs the function of a general

6 || demurrer... it ‘admits all material and issuable facts pleaded.” (Barker v, Hull (1987) 191

7 || Cal. App.3d 221, 224.) However, in addition to the facts alleged in the complaint, the court may

8 || also consider matters which may be judicially noticed, including events and filings in its own

§ || docket as well as the docket of other government entities, such as records of the various Workers
10 || Compensation boards. (/bid). The court may also take judicial notice of “facts and propositions

il || that are not reasonably subject to dispute and are capable of immediate and accurate

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5 12 || determination by resort to sources of reasonably indisputable accuracy.” Cal. Ev. Code section
“ S 13 |]452(h).
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% 2 14 B. Plaintiffs Has Failed to State a Claim Against Budd
3 S 15 The California Supreme Court has mandated that a plaintiff in an asbestos case “must, in
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16 || accordance with traditional tort principles, demonstrate . . . that a product or products supplied
17 || by the defendant, to which he became exposed” caused injury. (Rutherford v. Owens-Illinois

18 || (1997) 16 Cal.4th 953, 958, emphasis added.) “{TJhe plaintiff must prove that the defective

19 || products supplied by the defendant” caused injury. (éd., 16 Cal.4th at 968.) The burden of proof
20 || on the issue of exposure to a defendant’s asbestos-containing product lies with the plaintiff, and
21 || “iJ there is no exposure, there can be no causation.” McGonnell v. Kaiser Gypsum Co., Inc

22 || (2002) 98 Cal_App.4th 1098, 1103 “It is not enough to produce just some evidence. The

23 || evidence must be of sufficient quality to allow the trier of fact to find the underlying fact in favor
24 || of the party opposing the motion for summary judgment.” Ud. at 1105.)

25 Simply placing a defendant’s product at a work site is insufficient by itself to establish

26 || causation in an asbestos case. And plaintiffs have failed to accomplish even that. Multiple cases
27 || hold that without solid evidence that an injured party have been exposed to asbestos from a

28 || defendant’s product, the defendant cannot be found liable. For example, Dumin v. Owens-
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BUFFALO PUMPS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF ITS MOTION FOR JUDGMENT ON THE PLEADINGSGordon & Rees LLP
Embarcadero Center West

275 Batiery Street, Suite 2000
San Francisco, CA 94111

Corning Fiberglas Corp. (1994) 28 Cal_App.4th 650, 658 held that causation requires a showing
of actual “exposure to asbestos products of a type supplied by defendants,” not just that both may
have been at the same site at the same time. In Dunn, plaintiff was stationed aboard the
Pocono. Plaintiff alleged that defendant's product was present at the shipyard where the Pocono
was home ported and repaired, and argued that this was enough to demonstrate that plaintiff was
exposed to asbestos from defendant’s product. Dumin rejected the sufficiency of this evidence as
no more than “a stream of conjecture and surmise” and directed a verdict in the defendant’s
favor, (28 Cal.App.4th at 654.)

Similarly, Lineaweaver v. Plant Insulation Co, (1995) 31 Cal.App.4th 1409, cited
approvingly in Rutherford, approved nonsuits as to two plaintiffs who could not demonstrate
actual exposure to the defendant’s products. One plaintiff worked on many ships and offered
testimony that defendant’s insulation product was used on many merchant marine ships. This
was not enough, because there was “simply no evidence that [defendant’s] asbestos products
were actually used, or even probably used, on any of the ships at the time [plaintiff] was serving
aboard them.” (31 Cal_App.4th at 1420-1421.) Another plaintiff introduced evidence of a
“general practice” of using the defendant’s products “on ships along the San Francisco Bay
waterfront” where he worked. This too was not enough, because even if “sufficient to permit an
inference that some amount of [defendant's] products were at [the shipyard] during the time of
{plaintiff's] employ, the evidence is wholly inadequate to support the conclusion that [he] was
exposed to” that product. ‘The “evidence fails to show that [plaintiff] was exposed to
[defendant’s product], and instead creates a dwindling stream of probabilities that narrew into
conjecture.” (31 Cal.App.4th at 1421, emphasis added.)

In Smith v. AC&S, Inc, (1994) 31 Cal_App.4th 77, overruled on other grounds, Camarge
v, Tacrda Dairy (2001) 25 Cal.4th 1235, evidence that the product was ai plaintiff's worksite
was not enough. The Smith plaintiff offered evidence that he worked at a refinery where
defendant sometimes had insulators, but had no evidence showing that his work there took place
at the same time that insulators employed by defendant were present. The plaintiff stated that he

worked around “Armstrong” personnel, but could not clarify whether that meant defendant
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BUFFALO PUMPS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF ITS MOTION FOR JUDGMENT ON THE PLEADINGSwv

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ACandS or another enfity named Armstrong. Sniff held that proof of actual exposure to a
defendant's asbestos products is required “under even the most lenient causation standards,”
and that on this showing, “only rank speculation, not reasonable inferences, could support a
conclusion that Smith was exposed to ACandS installed asbestos materials. Lacking proof of
causation, all of Smith’s claims against ACandS fail.” (31 Cal.App.4th at 77, emphasis added.)
Smith reversed a jury verdict and remanded with instructions to enter judgment in the
defendant’s favor.

Hunter v. Pacific Mechanical Corp. (1995) 37 Cal.App.4th 1282, overruled on other
grounds Aguilar, supra, 25 Cal 4th at 850, granted summary judgment motion for a defendants
where the evidence showed “mere[ly]” that defendant’s product “was potentially present al
Hunter's work site.” (37 Cal-App.4th at 1289.) This was held insufficient to create a triable
issue of fact regarding the causal link between Hunter's asbestos-related disease and PMC’'s
activities. (Ibid.)

Most recently, in McGonneil, the decedent was unable to identify the defendant's
products at deposition, and while “defendants’ products might have been used once ona
construction project at decedent's place of work ... there was no evidence that those products
contained asbestos at the time of their use.” (98 Cal App.4th at 1105.) MfcGonnell affirmed
summary judgment, because instead of evidence of actual exposure plaintiffs had only
“speculation that at some time McGonnell might have cut into a wall that might have contained
Kaiser joint compound that might have contained asbestos.” (/d.}

Here, there is no evidence plaintiff worked with any Budd Company product, as there is
nota single allegation in his Complaint averring this fact. Further, as plaintiff has refused to

attend his deposition, he will be unable to do so at trial, and should not be allowed to amend.

“de

BUFFALO PUMPS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF ITS MOTION FOR JUDGMENT ON THE PLEADINGSEmbarcadero Center West

Gordon & Rees LLP

1 LEV. CONCLUSION
2 WIEREFORE, defendant's motion should be GRANTED, and plaintiffs Complaint

3 || dismissed with prejudice.

4 || Dated: October 21,2010 GORDON & “p
5 ‘Ss é
6 v re, é
By: Sone
7 CHRISTOPHER D, STRUNK
Attorneys Fer Defendant
8 THE BUDD COMPANY
9

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BUFFALO PUMPS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF ITS MOTION FOR JUDGMENT ON THE PLEADINGS