Motion-Secondary: CHARLES BOUDREAUX et al VS. ADVOCATE MINES, LTD et al

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                                [DAVID T. BIDERMAN (State Bar No. 101577)

PATRICK M. MALONE (State Bar No. 167433) ELECTRONICALLY
PERKINS COIE LLP FILED
Four Embarcadero, Suite 2400 Superior Court of Californie,
San Francisco, California 94111 County of San Frencisco
‘Telephone: (415) 344-7000 OCT 16 2007
Facsimile: (415) 344-7288 GORDON PARK-LI, Clerk
BY: CHRISTLE ARRIOLA
Attorneys for Defendant Deputy Clerk

(Georgia-Pacific LLC, fll/a Georgia-Pacific Corporation

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO

CHARLES BOUDREAUX and DEBORAH] Case No. CGC-07-274029
BOUDREAUX,
DEFENDANT GEORGIA-PACIFIC
Plaintiff, LLC’S MEMORANDUM OF POINTS
AND AUTHORITIES IN SUPPORT OF

y. MOTION FOR SUMMARY JUDGMENT

. Date: October 29, 2007
ADVOCATE MINES LTD. et al., Time: $:30 am.
Department: 301
Defendants. Judge: Hon. Patrick J. Mahoney

Complaint Filed: January 12, 2007
Trial Set: November 13, 2007

MEMORANDUM OF POINTS AND AUTHORITIES.

1 INTRODUCTION
This is an asbestos personal injury action brought by Plaintiffs Charles Boudreaux and
Deborah Boudreaux (“Plaintiffs”) against multiple defendants, including Georgia-Pacific LLC,
fika/ Georgia-Pacific Corporation ("Defendant" or “Georgia-Pacific”). Plaintiffs claim that
‘Charles Boudreaux was exposed to products manufactured, supplied or distributed by the various

Defendants both directly through his own employment and secondarily from the work clothes of

| GEORGIA-PACIFIC LLC'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUIXGMENT
‘Case No. CGC-07-274129 (60512-0001.03157. EGAL13639916.1his father. However the record is devoid of any evidence to support Plaintiffs’ claims against
Georgia-Pacific.
U. STATEMENT OF FACTS:

On or about January 12, 2007, Plaintiffs filed their asbestos personal injury complaint
alleging, among other things, causes of action for negligence, strict liability and false
representation against Georgia-Pacific and other defendants. Separate Statement of Undisputed
Material Facts (“UME”) No. 1. Plaintiffs further allege that Plaintiff Charles Boudreaux was
injured and developed mesothelioma from his exposure to asbestos-containing products while
working in various industrial plants, manufacturing plants, commereial buildings, residential units,
and/or other facilities in California from the mid 1960s until 2006 as well as from exposure to
asbestos fibers and dust cmanating from his father’s work clothing between the years 1952 and
1964. UMF No. 2. On March 2, 2006, Georgia-Pacific dled an Answer to Plaintiff's Complaint

denying Plaintift’s allegations. UMF No. 3.

However, Plaintiffs have not produced any competent evidence establishing that Mr.
Boudreaux was exposed to asbestos-containing products manufactured, supplied, or distribuled by
Georgia-Pacific. Mr. Boudroaux was deposed for four days, on April 30 and May 1-3 2007. UMF
4, ‘Throughout those four days, Plaintiff never named Georgia-Pacific as the manufacturer or
supplier of a single product at any of his jobsites, despite being asked repeatedly to identify the
manufacturers and suppliers of all asbestos-containing products to which he could recall having
been exposed throughout his career. Moreover, on the final day of his testimony, when he was
asked specifically whether he was familiar with a company by the name of Georgia-Pacific, Mr.
Boudreaux testified that he was unable to remember ever having worked with or around any

product manufactured or distributed by Georgia-Pacific. UMF No. 5.

In fact, he only testified about one small job throughout his entire 40-year career where he
even had a potential to have been exposed to drywall accessory products. In the mid-1980s, Mr.
Boudreaux remodeled the garage at his home located in Tracy, California, Although he testified

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GEORGIA-PACIFIC LLC'S MEMORANDUM OF POINTS AND ALTTHORITIES (N SUPPORT OF MC)TION FOR SUMMARY JUDGMENT
Case No, COC-07-274128, {603 12-0001.03¢51.FGAL.13639916,1that he put up drywall, tape and mud on that job, he was unable (o recall the brand name of those
products, UMF No. 7.

In response to standard interrogatories and various supplements thereto, Plaintiff never
identified any potential exposure to asbestos or asbestos-containing products manufactured or
supplied by Georgia-Pacific. UMF Nos, 8-12. Georgia-Pacific propounded special interrogatories
to Plaintiffs on August 9, 2007. UMF No. 13. Similarly, Georgia-Pacific served requests for
production of documents as well as requests for admissions on August 8, 2007. UMF Nos. 14-15.
Plaintiffs were obligated to have served their responses to all of Georgia-Pacific’s discovery no
later than September 17, 2007.) To date, Plaintiffs have failed to serve any responses whatsoever.
Accordingly, Plaintiffs have not produced a single document or other evidence tending to

demonstrate that plaintiff was exposed to any Georgia-Pacific asbestos-containing products

Ill. GEORGIA-PACIFIC IS ENTITLED TO JUDGMENT AS A MATTER OF LAW

AL Summary Judgment Is Proper Where, As Here, Plaintiff Cannot Establish The
Existence Of A Triable Issuc Of Material Fact.

In California, summary judgment should be granted “if all the papors submitted show that
there is no triable issue as to any material fhe.” Code of Civ. Proc. § 437c, subd. (c). A defendant
can make such a showing by presenting evidence that “the plaintiff does not possess, and cannot
reasonably obtain, needed evidence.” Aguilar v, Atlantic Richfield Co., 25 Cal.Ath 826, 854
(2001).

Ifthe defendant meets its initial burden, then the burden shifts to the plaintiffs “to show
that a triable issue of one or more material facts exists.” Code of Civ. Proc. § 4376, subd. (p)(2).
‘To sustain this burden, the plaintiffs must “set forth the specific facts showing that a triable issue
of material fact exists.” Id. (emphasis added). A “triable issue of material fact” exists “if, and

only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of

4 Defendant sent a meet and confer letter to plaintifis on October 12, 2007. As ef the time ofthis filing, plaintiffs have
‘not responded. October 12, 2007 meet and confer lelter Irom P. Malone to R. Gold, LIMF No. 16,

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| GEORGIA-PACIFIC LLC'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
‘Case No, CGC-O7-274128 (600352-4001.038S/LEGAL13630916.1the party opposing the motion in accordance with the applicable standard of proof.” Aguilar, 25
Cal.ath at 850.

Ina product liability action, the plaintifi must present evidence “that would allow a
reasonable trier of fact to find in [his/her] favor . . . by a preponderance of the evidence.” Id, at
852. A plaintiff may not avoid summary judgment based on mere speculation, but instead must
produce admissible evidence which raises a triable issue of fact. Saelzler v. Advanced Group 400,

25 Cal.4th 763, 774-77 (2001).

Georgia-Pacific has presented evidence that Plaintiffs do not possess and cannot reasonably
obtain any evidence that plaintiff Charles Boudreaux was exposed to an asbestos-containing
product manufactured, supplied, or distributed by Georgia-Pacific. Plaintiffs bear the burden of
showing that there is evidence that would permit a reasonable jury to find that it is “more likely
than not” that Georgia-Pacific is responsible for plaintiff's alleged asbestos injuries. Plaintiffs are
‘unable to establish the existence of a triable issue of material fact because they have wholly failed
to present a single specific facts to show that Georgia-Pacific is liable to Plaintiffs, Therefore,

Georgia-Pacilic’s motion for summary judgment must be granted.

B. There Is No Evidence To Support Essential Elements Of Plaintiffs’ Causes Of
Action.

A plaintiff alleging asbestos related injurics bears the burden of proof on the issue of
exposure to defendant’s asbestos-containing product. Rutherford v. Owens-Illinois, Inc., 16
Cal.4th 953, 975 (1997); McGonnell v, Kaiser Gypsum Co., 98 Cal.App.Ath 1098, 1103 (the
“threshold issue in asbestos litigation is exposure to the defendant’s product. The plaintiff bears
the burden of proof on this issue.”), “If there has been no exposure, there is no causation.”
MeGonnell, 98 Cal.App.4th at 1103. Plaintiff Charles Boudreaux has offered no specific facts
showing that he was exposed to a single Georgia-Pacific asbestos-containing product. Therefore,
each cause of action fails because Plaintiffs cannot meet their threshold burden of establishing
exposure to an asbestos-containing product manufactured or sold by Georgia-Pacific. Plaintiffs,

therefore, are without any competent evidence linking plaintiff Charles Boudreaux’s disease to

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(GEORGIA-PACIFIC 1.12" MEMORANDUM OF POINTS AND AUTIORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
Case No, CGC-07-274129 60312-0001.03151 EGAI13639916.Lexposure to a Georgia-Pacific asbestos-containing product. Accordingly, summary judgment
should be granted in favor of Georgia-Pacific.

Iv. CONCLUSION
Plaintiffs are without any competent evidence establishing exposure by Charles Boudreaux
to an asbestos-containing product, manufactured, distributed, or supplied by Georgia-Pacific. For
the reasons set forth above, Georgia-Pacific respectfully requests summary judgment on each of

Plaintiffs’ causes of action.
DATED: October 15, 2007 PERKINS COIE LLP

By: /s/ Patrick M. Malone
Patrick M. Malone

Attorneys for Defendant

Georgia-Pacific LLC, f/k/a Georgia-Pacific
Corperation

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| GEORGIA-PACIFIC LLC'S MEMORANDUM OF POINTS AND ALITHORIVTES (V SUPPORT OF MOTION FOR SUMMARY JUDGMENT
Case No, COCOTITND £0342.0001.0385/1 EGALI3659916 1oo

PROOF OF SERVICE
I, Lisa Hardcastle, am employed in the County of San Francisco, State of California. | am
cover the age of 18 years and am not a party to the within action. My business address is Perkins
Coie LLP, Four Embarcadero Center, Suite 2400, San Francisco, California 94111. I am familiar
with the business practice of Perkins Coie LLP. On October 15, 2067, I caused to be served the
following document(s) on the interested parties in this action through the use of the website
maintained by Lexis Nexis.

DEFENDANT GEORGIA-PACIFIC LLC’S MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

[BY ELECTRONIC MAIL: | provided the document(s) listed above to the Lexis Nexis
website pursuant to their instructions on thal website. TC the document(s) is/are provided to
Verilaw electronically by 5:00 p.m., then the document will be deemed served on the date
that it was provided to Lexis Nexis.

1 declare under penalty of perjury under the laws of the State of California and the United
States of America that the foregoing is true and correct and was cxccuted in San Francisco,

California.

DATED: October 15, 2007
isa Hardcastle

[GEORGIA-PACIFIC L1.C’S MEMORANDUM OF POINIS AND AUTHORITIES (N SUPPORT OF MOTION FOR SUMMARY JUDGMENT.
Case No, CGC-07.274129, (60312-0001.03151.HGAL.13639916.1