Exhibit,Appendix: RUFUS ALEXANDER VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al

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Gordon & Rees LLP
101 West Broadway, Suite 2000
San Diego, CA 92101
vs
BR

28

ERCHILOSRTIGNEIISTIV

ROGER M. MANSUKHANI (SBN: 164463)
STEVEN A. SOBEL (SBN: 177210)

K.C. SWISHER (SBN: 245238)

GORDON & REES LLP

101 W. Broadway, Suite 2000

San Diego, CA 92101

Telephone: (619) 696-6700

Facsimile: (619) 696-7124

Attorneys for Defendant
HENNESSY INDUSTRIES, INC.

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

JUL 23 2010

Clerk of the Court
BY: WILLIAM TRUPEK
Deputy Clerk

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN FRANCISCO

RUFUS ALEXANDER,
Plaintiffs,
vs.
ASBESTOS DEFENDANTS (B“P) as

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

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CASE NO. CGC-08-274719

EXHIBITS C AND DTO
DECLARATION OF K.C. SWISHER IN
SUPPORT OF HENNESSY
INDUSTRIES, INC.’S MOTION FOR
JUDGMENT ON THE PLEADINGS

[Filed and served concurrently with
Notice of Motion and Motion for
Judgment on the Pleadings;
Memorandum of Points and Authorities
Compendium of Foreign Authority;
Request for Judicial Notice; and
[Proposed] Order.]

Date: September 21, 2010
Time: 9:30 am.

Judge: Hon. Harold E. Kahn
Dept: 220

Complaint Filed: July 1, 2008
Trial date: None Set

EXHIBITS C AND D TO DECLARATION OF K.C. SWISHER IN SUPPORT OF HENNESSY INDUSTRIES,
INC.’S MOTION FOR JUDGMENT ON THE PLEADINGSEXHIBIT CCage Number:

S/24/2010

CGCO5454956
Case Title:

Court Date:
Calendar Matter:

Rulings:

Page 1 of 3

WILLIAM BETTENCOURT et al VS. ASBESTOg
DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et
al

May~11-2020 09:30 AM

Notice Of Motion And Motion For Judgment on
The Pleadinga

On calendar for Tuesday, May 11, 2010 in
Department 220 at 9:36 a.m., Line 3.
Defendant Hennessy Industries, Inc.’s motion
for judgment on the pleadings is granted
with respect to all causes of action alleged
against Hennessy. The second, third and
sixth causes of action do not apecify any
product for which defendant is responsible.
(Bockrath v. Aldrich Chemical Co., Inc.
(1999) 21 Cal.4th 71, 80). The sixteenth and
seventeenth causes of action allege that the
brake shoe grinding machines “while being

‘used in a manner that was reasonably

foreseeable, failed to protect decedent from
exposure to ashestos fibers released from
asbestos-containing brake lining caused by
use of said. brake shoe grinding machines and
related products and equipment, resulting in
severe and permanent injury to

decedent.” {Complaint (] 154, 169). The
machines are alleged to be “defective and
unsafe for their intended purpose in that
said products caused, and failed to preveat,
the inhalation and ingestion of asbeatos
tihers by decedent. (Complaint §§ is5, 170).
A product manufacturer has no duty to
persons whose injury results from defecta in
the products of others. (Garman v. Magic
Chef, Inc. (1961) 117 Cal.App.3d 634; Walton
v. William Powall Co. 2010 WL 1612209;
taylor v. Blliott Turbomachinery Co., Inc.
171 (2009) Cal.aApp.4th 564). The complaint
does not allege that defendant sold an
asbeatos-containing product or that it had
any control over the design and manufacture
of the asbestos-containing brake Linings
used in conjunction with its machine,
Tellez-Cordova v. Camphell-Hausfeld/scott
Fetager Co. {2064} 129 Cal.app.ath 577 is
distinguishable because the power tools atCase Number:
Case Title:

Court Date:
Calendar Matter:

Rulings:

Page 2 of 3

isaue in that cage had no function until
they were used with toxic-containing disks.
(Id. at 584 (“{Ulse with the specified
wheels, diacs, and grinders wae the
inevitable use.“}. (to be Contined in the
next entry.)

CGC06454966

WILLIAM BETTENCOURT et al VS. ASBESTOS DEFENDANTS (B/P)AS
REFLECTED ON EXHIBITS et al

May~11-2010 09:30 AM

Defendant Hennessy Industries, Inc.'S Motion For Judgment on
The Pleadinga (Continued From The Previous Entry}

On calendar for Tuesday, May 11, 2010 in Department 220 at 9:30
a.m., Line 3. Defendant Hennessy Industries, Inc.‘S Motion For
Judgment On The Pleadings (Continued From the Previous Entry).
Here, there is no allegation that defendant’s machines could
enly function in conjunction with asbestos-containing brake
linings, ox that the machines and linings formed a single
defective system cover which the defendant exercised significant
control. (Walton, WL 2612269 at *7 {*Tellez-Cordova stands for
the proposition that the component parte doctrine is
inapplicable when a manufacturer's product is uniquely designed
to complete a system that is hazardous in its intended
use...Unlike Tellez-Cordova, in which the tools and dises formed
a single system over which the tool manufacturers had
aignificant control, the combination of Powell's valved with.
the packing, gaskets, and insulation formed no such syatem.”).
the machines are more analogous to the stove in Garman and the
acid in Blackwell v. Phelps Dodga Corp. (1984) 157 Cal.aApp.3d
372. Ae in these cases, the plaintifé‘s injury would not hava
occurred but for the defendant's product, but it was a defect
in the product of another which proximately caused the injury.
The only alleged defact in the defendant‘s machines ia that
they either caused another defective product to injure the
decedent Under Garman and Blackwell, the defendant has no duty
te plaintiff under these facts. Plaintiffe’ request for leave
te amend with reapect to ita third cause of action ia denied on
the ground that plaintiffs have not shown that they could amend
their complaint to allege liability against Hennessy. =
(220/HBK)Page 3 of 3

5/24/2010EXHIBIT Da

Gordon & Rees LLP

101 West Broadway

Suite 2000
Sun Diego, CA 92101

Oo OY A WH &F WN

etme tk
eo wa Aw FY YP 4 S

STEVEN SOBEL (SBW: 177210) Brows

MATTHEW A. MASON (SBN: 228056) FIL
K.C, SWISHER (SBN: 245238) Speer Cot othe
GORDON & REES LLP Feaeisca
101 West Broadway

Suite 2000 MAY 14 2010

San Diego, CA 92101

Phone: (619) 696-6700 ween ‘OF THE COURT
ro TH r.

Fax: (619) 696-7124

Attorneys for Defendant

HENNESSY INDUSTRIES, INC.

SUPERIOR COURT OF CALIFORNIA - COUNTY OF SAN FRANCISCO
CIVIC CENTER COURTHOUSE
RITA BETTENCOURT, as Wrongful Death =) CASE NO. CGC-06-454966

Heir, and as Successor-in-Interest to WILLIAM ) WK
BETTENCOURT, Deceased, et al., } [PROPOSED] ORDER GRANTING
) DEFENDANT HENNESSY
Plaintiffs, } INDUSTRIES, INC.’S MOTION FOR
} JUDGMENT ON THE PLEADINGS
vs,
} Hearing Date: May 11, 2010
ASBESTOS DEFENDANTS (BP) As ) Time: 9:30 a.m.
Reflected on Exhibits B, B-1, C, H, f; and ) Dept: 220
DOES 1-8500; and SEE ATTACHED LIST, )} Judge Harold E. Kahn
Defendants. } Complaint Filed: Au: }, 2006
} Trial date: March 22, 2010

PLEASE TAKE NOTICE that Qn May 11, 2010 at 9:30 a.m. in Dept, 220 of the above-
entitled Court, defendant Hennessy Industries Inc.’s Motion for Judgment on the Pleadings as to
Plaintiffs’ First Amended Complaint came for regular hearing.

The court, having considered of the moving, opposing and reply papers filed in
connection with this motion as well as the oral argument of counsel, hereby orders as follows.

Defendant Hennessy Industries Inc.’s Motion for Judgment on the Pleadings as to the
causes of action asserted against it in Plaintiffs’ First Amended Complaint is hereby GRANTED.
“

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{PROPOSED} ORDER GRANTING DEFENDANT HENNESSY INDUSTRIES, INC." MOTION FOR

JUDGMENT ON THE PLEADINGS10

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WGHNOS to azrrersaay &

ITTSSO ORDERED,
DATED:_£ }i}10
. : HontJudge Harold E. Kaha
San Francisco Superior Court
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[PROPOSED] ORDER GRANTING DEFENDANT HENNESSY INDUSTRIES, INC.” SMOTION-FOR
JUDGMENT ON THe PLEADINGS