Attorneys for Defendants

Superior Court of the State of California, County of San Francisco

C. J.
Plaintiff
v.
ASBESTOS DEFENDANTS (BP)
Defendants

DEFENDANT CERTANTEED CORPORATION’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUE

Judge: Honorable Peter J. Busch

Table Of Contents

I. Introduction 1
II. Statement Of Facts 1
A. Plaintiff’s Complaint Does Not Identify Any CertainTeed Products 1
B. Plaintiff’s Responses To Discovery Do Not Establish That Plaintiff Was Exposed To Asbestos For Which CertainTeed Is Responsible 2
C. Plaintiff’s Deposition Testimony Does Not Identify Exposure To any Asbestos For Which CertainTeed Is Responsible 3
D. CertainTeed’s Purchase Of Raw Asbestos Fiber 4
E. Plaintiff Has Provided No Facts In Support Of His Negligence, Strict Liability, And False Representation Causes Of Action.. 5
F. Plaintiff Has Provided No Facts To Support His Claim For Punitive Damages 6
III. Argument 6
A. Summary Judgment Is Appropriate To Dispose Of Unmeritorious Actions 6
B. CertainTeed Is Entitled To Summary Judgment Because Plaintiff Cannot Prove He Was Exposed To Asbestos For Which CertainTeed Is Responsible 7
1. Plaintiff’s Claims For Negligence And Strict Liability Fail As A Matter Of Law 7
2. Plaintiff’s False Representation Claim Fails As A Matter Of Law 9
C. Plaintiff’s Punitive Damages Claim Should Be Dismissed Because He Has Failed To Provide “Clear And Convincing” Evidence That CertainTeed’s Acts Were “Malicious, Oppressive, Or Fraudulent” 10
D. Plaintiff’s Laundry List Of Alleged Witnesses Fails To Establish A Disputed Material Fact 10
E. Plaintiff Has No Legal Basis For A Claim Against CertainTeed 11
1. Plaintiff Has No Strict Liability Claim Because CertainTeed Was Merely The Purchaser Of The Fiber, Not It Manufacturer, Distributor Or Retailer 11
2. Plaintiff Has No Negligence Claim Because CertainTeed Never Owed Him A Duty 13
a. CertainTeed Had No Duty To Plaintiff Because There Was No Special Relationship Between Him And CertainTeed 13
b. The Uniform Commercial Code And Fob Provisions Do Not Govern Tort Liability For Injury To A Third-Party 14
c. Even If Purchasers Of Products In Transit Have A Duty, CertainTeed Cannot Be Held To A Higher Standard Than Is Established For Premise Owners 14
IV. Conclusion 16

Table Of Authorities

Aguilar v. Atlantic Richfield Company25 Cal.4th 826 7

Anderson v. Owens-Corning Fiberglas Corp.(1991) 53 Cal.3d 987 12

Andrews v. Foster Wheeler(2006) 138 Cal.App.4th 96 10,11

Basich v. Allstate Ins. Co.(2001) 87 Cal.App.4th 1112 10

Brown v. Sup. Ct.(1988) 44 Cal.3d 1049 12

Camargo v. Tjaarda Dairy 25 Cal.4th 1235 14

Catalano v. Superior Court (Camenson)(2000) 82 Cal.App.4th 91 10

D’Amico v. Board of Medical Examiners11 Cal.3d 1 6

Dumin v. Owens-Corning Fiberglas Corp.28 Cal.App.4th 650 8, 9

Garcia v. Joseph Vince Co.(1978) 84 Cal.App,3d 868 7, 8

Hauler v. Zogarts14 Cal.3d 104 9

Hunter v. Pacific Mechanical Corp. 37 Cal.App.4th 1282 7

Jimenez v. Superior Court of San Diego County29 Cal.4th 473 11

Kinsman v. Unocal Corp.(2005) 37 Cal.4th. 659 14, 15

Lineaweaver v. Plant Insulation Co.(1995) 31 Cal.App.4th 1409 7

Lockheed Martin Corp. v. Superior Court29 Cal.4th 1096 13

McGonnell v. Kaiser Gypsum Co.(2002) 98 Cal.App.4th 1098 7, 8

Peterson v. Superior Court of Riverside County(1995) 10 Cal.4th 1185 11, 12

Privette v. Superior Court(1993) 5 Cal.4th 689 15

Richards v. Stanley (1954) 43 Cal.2d 60 [271 P.2d 23] 13

Rutherford v. Owens-Illinois(1997) 16 Cal.4th 953 8, 12

Scheiding v. Dinwiddie Construction Co.(1999) 69 Cal.App.4th 64 7

Tarasoff v. Regents of Univ. of Calif. (1976) 17 Cal.3d 425 [131 Cal.Rptr. 14, 551 P.2d334] 13

Taylor v. Elliott Turbomachinery Co., et al(2009) 171 Cal.App.4th 564 1, 11, 13

Toland v. Sunland Housing Group(1998) 18 Cal.4th 253 15

Union Bank v. Superior Court(1995) 31 Cal.App.4th 573 7, 9

Wilkinson v. Hicks(1981) 126 Cal.App.3d 515 12

Zelig v. Los Angeles(2002) 27 Cal.4th 1112 [19 Cal.Rptr.2d 709, 45 P.3d 1171] 13

Statutes

29 Code of Federal Regulations

section 9.102(a)(4)

section 9,102(c)(l)“-(2)

California Code of Civil Procedure

section 437c(o)(2)

section 437c(f)(l)

Civil Code

section 3294(a) 10

section 3294(c)(1) 10

section 3294(c)(2) 10

section 3294(c)(3) 10

Other Authorities

Law Reviews & Journals

Comment, California*s Approach io Landlord Liability for Tenants Injuries:

Strict Liability Reexamined (1993) U.C. Davis L.Rev. 367, 402-403 12

Restatements

Restatement Second of Torts, § 402A 11

I. INTRODUCTION

This case involves an extraordinary claim that seeks to impose liability on CertainTeed as the alleged purchaser of products, rather than the seller. Plaintiff asserts that he was exposed to asbestos fiber that he unloaded from cargo ships as a longshoreman at several San Francisco Bay Area piers. CertainTeed was not the seller of any of that asbestos fiber, but the alleged purchaser of some. Thus, Plaintiff contends that some of the fiber he unloaded from ships was destined for a plant owned by CertainTeed. Rather than pursue traditional negligence and strict liability claims against the companies that sold this fiber, Plaintiff instead seeks to hold CertainTeed responsible for his injuries. But, Plaintiff has provided no evidence that he was exposed to asbestos fiber destined for CertainTeed’s plant (as opposed to some other company's plant). Moreover, even if he could produce such evidence, there is no basis under California law to hold the purchaser of products responsible for injuries allegedly caused while the products were in transit and not in the purchaser’s possession. Indeed, the Court of Appeal’s recent decision in Taylor v. Elliott Turbomachinery Co., et al. (2009) 171 Cal.App.4th 564 reaffirms well- established principles that restrict both negligence and strict product liability claims to those products a defendant actually manufactured or sold. Hence CertainTeed is entitled to judgment as a matter of law on each of Plaintiffs claims. If for any reason this Court is unable to grant full summary judgment, CertainTeed moves, in the alternative, for summary adjudication as to each of Plaintiff s causes of action and his claim for punitive damages

II. Statement Of Facts

Plaintiff’s Complaint Does Not Identify Any CertainTeed Products

On November 7,2008, Plaintiff filed a First Amended Complaint for Damages (“Complaint”) setting forth causes of action for negligence, strict liability, false representation, and a claim for punitive damages. Plaintiff claims that his illness results from exposure to asbestos products manufactured, distributed and/or sold by the named defendants, including CertainTeed. [Undisputed Material Fact (“UMF”) No. 1.] Plaintiffs Complaint does not specify any basis for the claims against CertainTeed. In fact, apart from being named, CertainTeed is not otherwise identified therein. [UMF No. 2.]

Plaintiff’s Responses To Discovery Do Not Establish That Plaintiff Was Exposed To Asbestos For Which CertainTeed Is Responsible

Plaintiffs responses to Standard Interrogatories Sets One and Two and Supplemental/Amended responses do not identify any facts establishing that any product for which CertainTeed is responsible caused his alleged asbestos exposure. [UMF No. 3.] The Responses do not identify a single asbestos-containing product manufactured, supplied, distributed, or installed by CertainTeed which was ever used by Plaintiff. [UMF No. 4.] CertainTeed then served Plaintiff with comprehensive written discovery in order to elicit specific information and evidence regarding Plaintiffs claims. CertainTeed’s Interrogatories, Nos. 1-4, asked Plaintiff to state whether he was exposed to an asbestos-containing product manufactured or provided by CertainTeed and to identify the specific product as well as each location and time period during which he was allegedly exposed. [UMF No. 5.] Plaintiffs responses identify no such product, but instead assert that he loaded and unloaded asbestos fiber that was purportedly destined for a CertainTeed plant in Santa Clara, California, while working as a longshoreman off and on from approximately 1957 to approximately 1963 at various San Francisco Bay Area piers, including pier 19 at which he unloaded asbestos fiber from various Nedlloyd Shipping Line ships. [UMF No. 6.] CertainTeed did not acquire the plant in question until June 1962. Plaintiff also testified that he performed similar work at ports in Stockton, California, but CertainTeed did not own any plants that use asbestos fiber that was off-loaded at the port of Stockton.

CertainTeed’s Interrogatory No. 6 asked Plaintiff to identify each witness in support of his allegations and to provide their contact information. [UMF No. 7.] Plaintiffs response failed to provide any of the crucial information requested. Additionally, Plaintiff provided no information regarding the direct knowledge that any witness possessed regarding his work with or around raw asbestos allegedly destined for a CertainTeed plant. [UMF No. 8.] Moreover, Plaintiff objected to another defendant’s notice of the deposition of their client Mr. Robert “Bob” Birks who was listed as a witness by Plaintiff in both his interrogatory responses and his deposition1. [UMF No. 9.]1

CertainTeed also requested that Plaintiff identify and produce documents in support of the allegation that he worked with and around raw asbestos for which CertainTeed was responsible. [UMF No. 10.] In response. Plaintiff referred to a litany of documents: his social security records; CertainTeed’s General Order 129 Interrogatory responses and responses served in other unrelated actions; various corporate documents; various depositions, including those of CertainTeed employees and former plaintiffs unrelated to this action; corporate records of CertainTeed relating to the shipment of raw asbestos; safety orders regarding asbestos in the workplace since the 1940s; California laws and regulations relating to the asbestos industry since the 1930's; a reference to a book by Barry Castleman; and various ordinances, statutes, and other government regulations. [UMF No. 11.] Plaintiff did not, however, produce any documents, nor did he say how any of the listed documents link him to raw asbestos fiber allegedly destined for CertainTeed’s plant. [UMF No. 12.]2

Plaintiff’s Deposition Testimony Does Nor Identify Exposure To Any Asbestos For Which CertainTeed Is Responsible

In five days of deposition testimony in December of 2008, Plaintiff testified that he unloaded asbestos fiber at various San Francisco piers from Nedlloyd ships between 1957 and 1960, taking his work instructions solely from his employer, the Pacific Maritime Association. [UMF No. 13.] Plaintiff further testified that he unloaded raw asbestos fibers at Piers 9 and 19 in the early 1960s and that the shipping line at Piers 9 and 19 was Nedlloyd. [UMF No. 14.] Again, he took all of his work instructions from Pacific Maritime. [UMF No. 15.] He did not know who ordered the asbestos he unloaded. [UMF No. 16.] He had never heard of CertainTeed Corporation. [UMF No. 17.]

CertainTeed’s Purchase Of Raw Asbestos Fiber

CertainTeed bought asbestos fiber that was mined in South Africa, transported by Nedlloyd to San Francisco Piers 19 and 23, offloaded, and transported to its Santa Clara plant. [UMF No. 19.] CertainTeed never owned or operated any asbestos mine and never sold asbestos fiber to any company in the State of California. Nor did CertainTeed ever own or operate any pier or port in the San Francisco Bay Area where ocean-going vessels were loaded and unloaded. Further, CertainTeed never employed any longshoreman to unload asbestos fiber from ships at any port or pier in San Francisco and never directed or controlled the manner in which longshoremen unloaded cargo. Nor did CertainTeed ever enter into any contract with any organization that managed the unloading of cargo from ships at any ports or piers in San Francisco. [UMF No. 20.]

CertainTeed did not select Nedlloyd to ship the raw fiber from Africa to the Port of San Francisco. Rather, either the broker of the fiber or the mining company selected and controlled the shipping. [UMF No. 21.] CertainTeed did not package the fiber; the seller did. [UMF No. 22.] CertainTeed had no control over the warnings placed on the bags of fiber; the seller did. [UMF No. 23.] CertainTeed did not hire longshoremen to offload the bags of fiber from the ships to land; others did. [UMF No. 24.]

Since at least 1960, federal regulations imposed responsibility for ensuring the safety of longshoremen on the companies that employed them, [UMF No. 25.] Among other things, the federal regulations required employers of longshoremen to provide their employees with respirators approved by the U.S. Bureau of Mines with proper filters for use in protecting them against “pneumoconiosis producing dusts” and against “toxic dusts,” and to instruct their employees in how to use these and other respirators. 29 ( ’. K R. § 9.102(a)(4), (e)( 1 M2).3 [UMF No. 26.] These federal regulations were consistent with California’s own Industrial Safety Orders that were in place since well before the 1960s, and which also placed the burden of workplace safety, including workplace safety when dealing with asbestos, on employers. [UMF No. 27,] Thus, throughout the 1960s, California law and Federal law made employers handling asbestos responsible for the workplace safety, and obligated the employer to provide the worker with respiratory protection if necessary. [UMF No. 2$.] Moreover, there is no evidence of any concealment of the danger of asbestos from Plaintiffs employer. Plaintiffs state-of-the-art expert routinely testifies that the hazards of asbestos were knowable from published documents, association documents and safety orders as early as the 1930s. [UMF No. 29.]

Plaintiff Has Provided No Facts In Support Of His Negligence, Strict Liability, And False Representation Causes Of Action

CertainTeed’s Interrogatory Nos. 19-21 asked Plaintiff to state all the facts and identify all witnesses and documents supporting his claim for negligence. [UMF No. 30.] Plaintiff responded only by repeating his allegation that he unloaded asbestos fiber that was destined for CertainTeed while employed through Pacific Maritime Association as a longshoreman. [UMF No. 31.] Plaintiffs responses, however, set forth no facts and identified no documents or witnesses that actually link him to an asbestos-containing product either sold or purchased by CertainTeed. [UMF No. 32.] In fact, there is no evidence at all suggesting that CertainTeed was negligent. [UMF No. 33.]

CertainTeed’s Interrogatory Nos. 22-24 asked Plaintiff to state all the facts and identify all witness and documents supporting his claim for strict liability. [UMF No. 34.] Plaintiff responded simply by referencing his prior responses, including his response to CertainTeed’s interrogatories regarding Plaintiffs negligence claim. [UMF No. 35.] No evidence in this record supports Plaintiffs claim that CertainTeed is strictly liable.

Plaintiff had never heard of CertainTeed and never worked with or around a product supplied, distributed or manufactured by CertainTeed, [UMF No. 36.] CertainTeed’s Interrogatories, Nos. 25-27 sought all facts, documents, and witnesses supporting Plaintiffs cause of action for false representation. [UMF No. 37.] Plaintiffs response again incorporated prior unrelated responses, without identifying any false representation made by CertainTeed. Plaintiffs response contains only general allegations and never says what specific false representation, if any, CertainTeed made to him. [UMF No. 38.] Here again, the record in this matter is devoid of any evidence of any specific false representation made by CertainTeed to Plaintiff. Plaintiff even admitted during deposition that he had no knowledge of ever even speaking to anyone from CertainTeed. [UMF No. 39.]

Plaintiff Has Provided No Facts To Support His Claim For Punitive Damages

CertainTeed’s Interrogatory Nos. 52-54 asked Plaintiff to state all facts and identify all witnesses and documents supporting his claim for punitive damages. [UMF No. 40.] Plaintiff again referred to prior interrogatory responses and stated, with no support, that “Defendant supplied, sold, manufactured and/or distributed asbestos-containing products to Brannon Brothers Roofing who used said products at plaintiffs various work sites.” [UMF No. 41.] The record here wholly fails to establish that CertainTeed acted with malice, oppression or fraud. [UMF No. 42.]

III. Argument

A. Summary Judgment Is Appropriate To Dispose Of Unmeritorious Actions

It has long been established in California law that “[w]hen discovery, properly used, makes it ‘perfectly plain that there is no substantial issue to be tried’ [citations], section 437c, Code of Civil Procedure, is available for prompt disposition of the case [citations].” (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1. 20.) A defendant is entitled to summary judgment if it can show that one or more elements of the plaintiff s cause of action cannot be established. (Cal. Cm Proc. § 437c(o)(2).) Moreover, the moving defendant need not conclusively negate an element of the plaintiffs cause of action in order to prevail, but instead may show only that the plaintiff does not possess, and cannot reasonably obtain, the needed evidence. (Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, 854-855.)

In making this showing, the defendant may rely on the plaintiffs factually devoid discovery responses. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590.) Likewise, the defendant may rely on the plaintiffs deposition testimony that he has no knowledge of any exposure to that defendant’s products to establish that the plaintiff cannot establish causation. (McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098; see also Scheiding v. Dinwiddle Construction Co. (1999) 69 Cal.App.4th 64. 82; Hunter v. Pacific Mechanical Carp. (1995) 37 Cal.App.4th 1282, 1288; Union Bank at 590.)

B. CertainTeed Is Entitled To Summary Judgment Because Plaintiff Cannot Prove He Was Exposed To Asbestos For Which CertainTeed Is Responsible

Plaintiff’s Claims For Negligence And Strict Liability Fail As A Matter Of Law

As shown above, Plaintiff s discovery responses and deposition testimony are devoid of sufficient evidence to support the allegation that he was exposed to asbestos for which CertainTeed is responsible. Accordingly, under settled law, CertainTeed has shifted the burden of presenting a triable issue of material fact to Plaintiff.

If a plaintiff cannot establish exposure to defendant’s asbestos product, obviously the defendant cannot be held liable. (Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1415-16.) It is not enough for Plaintiff to establish exposure to any asbestos-containing product. Rather, the “threshold issue in asbestos litigation is exposure to the defendant's product. The plaintiff bears the burden, of proof on this issue.” (McGonnell v. Kaiser Gypsum Co., 98 Cal.App.4th 1098, (emphasis added); see also Garcia v. Joseph Vince Co., 84 Cal.App.3d 868, 874 (“[T]here must first be proof that the defendant produced, manufactured, sold or was in some way responsible for the [allegedly injury-causing] product.”).)

Under California law, where multiple suppliers of a product exist, a plaintiff cannot avoid summary judgment simply by suing one of those suppliers absent evidence that it is more likely than not that the particular defendant sued actually supplied the injury-causing product. In Garcia, the plaintiff was injured by his opponent's fencing sabre. The opponent used sabres made by two different manufacturers. There was no evidence showing which manufacturer made the injury-causing sabre. The Court of Appeal affirmed a nonsuit for the defendant manufacturer, holding that the evidence that the sabre originated with either of two different sources of supply was insufficient to permit the issue of liability to be presented to a jury, which could only speculate as to who should be liable, (id. at 874.).

Similarly, an asbestos plaintiff bears the burden of proving that he was “exposed to dangerous [asbestos] fibers from a product produced, distributed or installed by a particular defendant." (Rutherford, supra, at 975.) If the plaintiff is unable to satisfy this burden, summary judgment should be granted for the defendant. (McGonnell, supra, at 1105-06.)

In McGonnell, the Court ruled that the plaintiffs deposition testimony that he had no knowledge of exposure to Kaiser Gypsum products “is precisely the type of evidence specified by the Code of Civil Procedure and [the California] Supreme Court as proper evidence to support a summary judgment motion." (McGonnell at 1104, citations omitted.) The evidence offered by the plaintiff included Kaiser Gypsum invoices showing the sale of wallboard and joint compound products to a contractor, deposition testimony that Kaiser Gypsum products might have been delivered for use at plaintiffs place of employment where he claimed to have come into contact with its products, as well as other evidence showing that Kaiser Gypsum joint compound and other products contained asbestos, (id. at 1105.) The Court acknowledged that it was “within the realm of possibility that [the plaintiff] encountered a wall with Kaiser joint compound during his 24 years of employment at [the company].” (id, Emphasis added.) Still, the Court held that this was not sufficient evidence to allow a trier of fact to find in favor of the plaintiff. {Id.) The Court concluded that the evidence submitted by the plaintiff that he might have cut into a wall which might have contained Kaiser Gypsum joint compound which might have contained asbestos was simply “a dwindling stream of possibilities that narrow into conjecture” and that this was insufficient to withstand a summary judgment motion (id.)

In Dumin v. Owens-Corning Fiberglas Corp., 28 Cal.App.4th 650, the plaintiff claimed that he had been exposed on board a ship to Kaylo, a generic asbestos insulation product made by a number of different companies, including the defendant, Owens-Corning. (Dumin at 653.) The appellate court affirmed a nonsuit for Owens-Corning, rejecting the Plaintiffs’ reliance on a witness’s testimony that Owens-Corning Kaylo was “customarily used” at the ship’s home port shipyard. (Id. at 655.) Noting that Owens-Corning “was not the lone distributor of the product,” the Court concluded that the witness’s product identification testimony was insufficient. (Id at 656.)

As these authorities demonstrate, a plaintiff must adduce admissible evidence that he was in fact exposed to the particular defendant’s products. Plaintiff has not done so. He had never even heard of CertainTeed, nor could he identify with particularity any witnesses that could establish that he worked with or around any asbestos-containing product for which CertainTeed is liable. [UMF Nos. 9, 16 & 17.] Nor does his testimony show that any asbestos fiber that he actually unloaded was bound for CertainTeed’s plant as opposed to a plant owned by some other company.

In short, the undisputed evidence establishes that there is no triable issue regarding whether Plaintiff was exposed to asbestos for which CertainTeed is responsible.

Accordingly, Plaintiffs negligence and strict liability claims should be dismissed.

Plaintiff’s False Representation Claim Fails As A Matter Of Law

A false representation claim requires proof of a misrepresentation of material fact upon which Plaintiff justifiably relied. (Hauler v. Zogans (1975) 14 Cal.3d 104, 111 (elements of false representation).) Plaintiff has not identified any specific misrepresentation made by CertainTeed to him, let alone shown that CertainTeed’s misrepresentation was a substantial factor in causing his harm. [UMF Nos. 37-39.] A plaintiff cannot rely upon mere allegation, denials of its pleadings, or conclusory statements of potential liability in discovery responses to survive a summary judgment motion. (Union Bank v. Superior Conn (1995) 31 Cal.App.4th 573 at 582- 84.) Thus, this cause of action should be dismissed.

C. Plaintiff’s Punitive Damages Claim Should Be Dismissed Because He Has Failed To Provide “Clear And Convincing” Evidence That CertainTeed’s Acts Were “Malicious, Oppressive, Or Fraudulent”

"If the plaintiff is going to prevail on a punitive damages claim, he or she can only do so by establishing malice, oppression or fraud by clear and convincing evidence. Thus, any evidence submitted in response to a motion for summary adjudication must necessarily meet that standard.” (Basich v. Allstate Ins. Co. (2001) 87 Cal.App.4th 1112, 1121; Civ. Code 3294(a). )4"Malice” means conduct intended by tire defendant to cause injury to the plaintiff or despicable conduct that is carried on by the defendant with a willful and conscious disregard for the rights or safety of others. (Civ. Code § 3294(c)(1).) "Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. {Civ. Code § 3294(c)(2).) "Fraud” means intentional misrepresentation, deceit or concealment of a material fact with the intention of depriving a person of property or legal rights or otherwise causing injury. (Civ. Code 3294(c)(3).)

Plaintiff has failed to satisfy any of the requirements for a claim of punitive damages: he has adduced no evidence, let alone clear and convincing evidence, of malice, or oppression, or fraud on the part of CertainTeed. Thus his claim for punitive damages should be dismissed.

D. Plaintiff's Laundry List Of Alleged Witnesses Fails To Establish A Disputed Material Fact

Plaintiff produced a list of alleged witnesses in support of his claims, but he failed to provide any specific details as to where and when these co-workers worked with him, or what information they have regarding his alleged exposure to asbestos. Thus, his list does not create a triable fact precluding summary judgment.

In Andrews v. Foster Wheeler (2006) 138 Cal.App.4th 96, the plaintiff s discovery responses simply stated that he was exposed to the defendant's boilers and/or boiler components and put forth a list of co-workers and supervisors without stating any facts known to these alleged witnesses.” Id. at 105. The court granted the defendant's summary judgment motion, ruling: “[I]t is not reasonable for courts to infer ... that defendants can discover further material facts from plaintiffs' list of people and documents if the plaintiffs do not disclose any facts known by such persons or contained in such documents when asked to do so... If plaintiffs respond to comprehensive interrogatories seeking all known facts with boilerplate answers that restate their allegations, or simply provide laundry lists of people and/or documents, the burden of production will almost certainly be shifted to them once defendants move for summary judgment and properly present plaintiffs’ factually devoid discovery responses.” Andrews, 138 Cal.App.4th at 106-107.

The Court also specifically ruled that “Plaintiffs’ list of names, depositions, and documents do not raise disputed issues of material fact by themselves.” The same is true here: Plaintiff has identified no material fact in dispute.

E. Plaintiff Has No Legal Basis For A Claim Against CertainTeed

Plaintiff Has No Strict Liability Claim Because CertainTeed Was Merely The Purchaser Of The Fiber, Not Its Manufacturer, Distributor Or Retailer

Even if CertainTeed were the purchaser of some of the asbestos fiber unloaded by plaintiff, CertainTeed is not subject to strict liability with respect to the fiber because it was simply a purchaser, not the fiber's manufacturer, distributor, or retailer.

Under California law, strict liability for defective products applies to “manufacturers, distributors, and retailers” of the product that allegedly caused the injury. (Jimenez v. Superior Court of San Diego County (2002) 29 Cal.4th 473, 485; see also, e.g Restatement Second of Torts 402A.) Parties outside the product's chain of distribution are not subject to strict liability because they do not control the product's safety. (Peterson v. Superior Court of Riverside (1995) 10 Cal.4th 1185, 1197-1200.) Moreover, California law restricts the duty to warn in strict liability to entities in the chain of distribution of the defective product. And a manufacturer has no duty to warn of defects in products supplied by others unless the manufacturer’s product itself caused or created the risk of harm. (Taylor v. Elliot Turbomachinery Co., et al. (2009) 171 Cal.App.4th 564.)

The California Supreme Court has held that an asbestos “plaintiff must, in accordance with traditional tort principles, demonstrate ... that a product or products supplied by the defendant, to which he became exposed” caused the alleged injury. (Rutherford v. Owens-Illinois (1997) 16 Cal.4th 953, 958, emphasis added.) Under Rutherford and traditional tort principles, CertainTeed bears no liability for harm caused to Plaintiff by others' products. See also Peterson v. Superior Court of Riverside County (1995) 10 Cal.4th 1185, 1190 (hotel proprietor cannot be held strictly liable for injuries that occur on the premises, because “unlike manufacturers, landlords have limited control over safety of design and workmanship”) (citing Comment. California Approach to landlord Liability for Tenants Injuries: Strict Liability Reexamined (1993) U.C Davis L. Rev. 367. 402-403.)

Further, with regard to the doctrine of “loss spreading,” the California Supreme Court has stated repeatedly that “loss spreading is not the sole consideration in determining whether to impose strict liability for injuries resulting from a defective product.” (Peterson, supra, 1207-1208, citing Prawn v. Sup. Ct. (1988) 44 Cal.3d 1049.) Indeed, the Court has made clear that it never intended to turn the doctrine of strict liability into a doctrine of “absolute liability.” (Id., citing Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987, 1003-1004.)5

Two key principles prohibit the application of California strict liability law to CertainTeed under the facts of this case. First, CertainTeed was not in the chain of distribution (i.e., it was not a manufacturer, distributor or seller) of the asbestos fiber said to have harmed Plaintiff. [UMF Nos. 19-24.] Second, CertainTeed did not control the means, methods or manner of the packaging of the fiber. [UMF Nos. 19-24.] In view of these established and undisputable facts, CertainTeed is entitled to summary judgment on the strict liability claim. Plaintiff may have a strict liability claim against the entity that mined, marketed and sold the raw asbestos fibers to CertainTeed. But he has no basis for such a claim against CertainTeed.

Plaintiff Has No Negligence Claim Because CertainTeed Never Owed Him A Duty

Plaintiff cannot satisfy the first element of a negligence claim - a duty from the defendant to the plaintiff. Under California law, the elements of a negligence claim are “duty, breach of duty, proximate cause and damages.” Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096 (citation omitted). Mere ownership of a product while it is in transit and before it is in the purchaser’s possession is not sufficient to establish that CertainTeed had a duty to Plaintiff. Moreover, the notion that a duty to warn exists if the subsequent use of an asbestos- containing product is foreseeable to the defendants has been rejected. (Taylor v. Elliot Turbomachinery Co., el al. (2009) 171 Cal.App.4th 564.)

CertainTeed Had No Duty To Plaintiff Because There Was No Special Relationship Between Him And CertainTeed

A party has no duty to take affirmative action to assist or protect another, no matter how great the danger in which the other is placed, unless there is some special relationship between them that gives rise to a duty to act. Richards v. Stanley (1954) 43 Cal.2d 60; Tarasoff v. Regents of Univ. of Calif. (1976) 17 Cal.3d 425, [131 Cal.Rptr. 14, 551 P.2d 334] ; Zelig v. Los Angeles (2002) 27 Cal.4th 1112. 1128 [119 Cal.Rptr.2d 709, 45 P.3d 1171]. Even if Plaintiff off-loaded asbestos that was ultimately destined by CertainTeed, that does not establish a duty on the part of CertainTeed. CertainTeed did not manufacture or sell those bags of asbestos. In addition, Plaintiff was not employed by CertainTeed when he handled those bags, nor was he on CertainTeed’s property when he handled them. Nor was Plaintiff ever an employee of a contractor which CertainTeed employed, and CertainTeed had no say in which company or which men discharged bags of asbestos fiber from the Nedlloyd ships or the manner in which the work was done. In short, no relationship, legal or otherwise, existed between Plaintiff or Plaintiffs employer and CertainTeed, and no other facts establish any special relationship between CertainTeed and the Plaintiff that would give rise to a duty to the Plaintiff.

The Uniform Commercial Code And Fob Provisions Do Not Govern Tort Liability For Injury To A Third-Party

Plaintiff may endeavor to graft the Uniform Commercial Code's Freight on Board (“FOB”) provisions onto ton liability law to impose liability upon CertainTeed. But any FOB provisions that Plaintiff may rely on govern only the contract obligations between merchants for goods while in transit, particularly in the event of loss or damage to the goods. No FOB provision has ever been applied to determine tort liability for a third-party injury caused by an intransit product.

To apply FOB contract analysis to determine tort liability would be at loggerheads with settled California tort law, requiring evaluation of “the chain of distribution,” “control” and/or “affirmative acts” which contributed to third-party injures such as in a premises owner situation. (See also Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659.) Applying contract law here would obliterate the key factors which pose the historic underpinning of tort liability - manufacture, distribution or sale of an injury causing product, and/or control over the means, instrumentality or premises giving rise to an injury.

Even If Purchasers Of Products In Transit Have A Duty, CertainTeed Cannot Be Held To A Higher Standard Than Is Established For Premise Owners

Even if the purchaser of a product being shipped might under some circumstances have a duty towards those who handle the product in transit, the purchaser should not be held to a higher standard of care than a premise owner under California law. The purchaser’s duties to the employees of shipping or handling company cannot possibly be any greater than those imposed on the owner of real property when the employee of an independent contractor is injured on the landowner’s property. The concept of landowner liability is based on the landowner’s ability to control activities on the landowner’s real property. By contrast, the purchaser does not control the product until it is within the purchaser’s possession.

In the case of real property, California law rejects landowner liability where the employee of an independent contractor is injured on the landowner’s property, except in very narrow circumstances. (Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235 (rejecting negligent hiring theory); Toland v. Sunland Housing Group (1998) 18 Cal.4th 253 (rejecting theory of liability against landowner based on failure to provide “special precautions” to avert inherently dangerous risks associated with work); Privette v. Superior Court (1993) 5 Cal.4th 659 (rejecting application of “peculiar risk” doctrine against landowner where independent contractor’s employee can apply for worker’s compensation).) The cases make clear that independent contractors generally are responsible for the safety of their own employees, even when the employees enter someone else’s premises. Unless the land has a concealed hazard that is not known or knowable by the independent contractor, but is known to the landowner and not communicated to the independent contractor, the landowner is not liable. (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659.) Even if the landowner has superior knowledge of the hazard, that is irrelevant, so long as the hazard was known or knowable by the independent contractor. (Id at 680.) Here, according to plaintiff s own experts, information about potential health hazards of asbestos fiber was publicly available. There is no evidence of record, or any other reason to believe, that this information was neither known nor knowable to employers of longshoremen. This is especially so given the federal regulations directed specifically at employers of longshoremen by 1960 to protect their employees who handled toxic dusts, and the contemporaneous state regulations directed at all California employers concerning the need to control exposures to asbestos in the workplace.

A landowner may also be liable for injuries suffered by an independent contractor’s employee due to a dangerous condition on land that the owner affirmatively created or contributed to. Privette v. Superior Court (1993) 5 Cal.4th 689, 699-700. Here, there is no evidence that CertainTeed affirmatively created any dangerous condition.

In sum, purchasers of products in transit to the purchaser should not be held to a higher standard than a premises owner would be for injuries to an employee of an independent contractor injured on the premises. Under those standards, Plaintiff has no basis for a negligence claim against CertainTeed.

IV. Conclusion

CertainTeed respectfully requests that this Court grant its motion for summary judgment or, in the alternative, summary adjudication because Plaintiff cannot establish the necessary link between his alleged injuries and any asbestos for which CertainTeed is responsible.