2013-00154819-CU-AS

Lawanda Jo Montgomery vs. Georgia-Pacific, LLC

Nature of Proceeding:   Hearing on Demurrer

Filed By:  Boehm, Bruce J.

Defendant Harmon Management Corporation’s (“HMC’) demurrer to Plaintiffs Lawanda
Jo Montgomery, et al.’s First Amended Complaint (“FAC”) is ruled upon as follows.

In this asbestos lawsuit, Plaintiffs allege that Chester Montgomery, Sr., was exposed
to asbestos-containing products ultimately resulting in his death from mesothelioma.
Plaintiffs allege that decedent was exposed to asbestos and asbestos containing
products by the acts of numerous defendants between 1955 and 1980.  Exhibit A
attached to the FAC identifies locations and times during which the Decedent was
exposed to asbestos.  Plaintiffs allege causes of action for negligence, strict liability,
false representation, intentional tort/intentional failure to warn and loss of consortium.
HMC was added to the complaint as Doe 2 by way of doe amendment and is not
specifically mentioned in the FAC.

First, Second, Third, Fourth and Seventh Causes of Action (Negligence, Strict Liability,
False Representation, Intentional Tort/Intentional Failure to Warn and Loss of
Consortium)

HMC generally and specially demurs to these causes of action on the basis that
Plaintiffs failed to specify any acts, omissions, representations or products for which
HMC is allegedly liable.  Plaintiffs allege that “defendants” were engaged in
“researching, studying manufacturing, fabricating, designing, modifying, labeling,
assembling, distributing, leasing, buying, offering for sale, supplying, selling,
inspecting, servicing, installing, contracting for installation, repairing, marketing,
warranting, re-branding, manufacturing for others, packing and advertising a certain
substance, the generic name of which is asbestos, and other products containing said
substance.”

Plaintiffs also essentially allege that all defendants in this action misrepresented that
products and materials were safe when they knew otherwise.  For example, in the
Third Cause of Action for False Representation, Plaintiffs alleged that “Defendants,
their ‘alternate entities,’ and each of them, researched, manufactured, fabricated,
designed, modified, tested or failed to test, inadequately warned or failed to warn,
labeled, assembled, distributed, leased, bought, offered for sale, supplied, sold,
inspected, serviced, installed, contracted for installation, repaired, marketed,
warranted, re-branded, manufactured for others, packaged and advertised the said
asbestos and asbestos-containing products, as hereinabove set forth, the Defendants,
their ‘alternate entities,’ and each of them, expressly and impliedly represented to
members of the general public, including the purchasers and users of said product,
and other ‘exposed persons,’ including, without limitation, Decedent CHESTER G.             MONTGOMERY, SR. and his employers, that asbestos and asbestos-containing
products, were of merchantable quality, and safe for the use for which they were
intended.”  (FAC. ¶ 35.)  In the fourth cause of action Plaintiffs allege that “Defendants”
made false representations, suppressed information related to the danger of it
asbestos-containing products by not allowing the information to be distributed to the
general public, and sold products to Plaintiff and his employers without advising of the
dangers of asbestos.  (FAC ¶¶ 40-42.)

HMC reasons that the causes of action as alleged against it are deficient because
Plaintiffs failed to allege the specific locations where the decedent came into contact
with asbestos or asbestos containing products or identify any specific product and with
respect to the fraud based claims, it claims it is left to speculate as to what
representation it made, who made it on its behalf, and when and to whom it was made.
The Court agrees.

The demurrer is sustained for failure to state facts sufficient to constitute and for
uncertainty.  Plaintiffs have not alleged sufficient facts to put HMC on notice of what
asbestos containing products of HMC were used by the Decedent over the
approximate 25 year period identified in Exhibit A to the FAC.  In addition, Plaintiffs
have not adequately alleged any false representation/failure to warn by any particular
representative of HMC regarding any particular asbestos based product at any
particular time during the Decedent’s 25 years or working.

As a result, the demurrer to the first, second, third, fourth, and seventh causes of
action is sustained with leave to amend.  Leave to amend is granted at this is HMC’s
first challenge to the complaint,

Plaintiffs may file and serve an amended complaint no later than July 7, 2014.
Defendants shall file and serve its response within 10 days thereafter, 15 days if the
amended complaint is served by mail.  (Although not required by any statute or rule of
court, Plaintiffs are requested to attach a copy of the instant minute order to the
amended complaint to facilitate the filing of the pleading.)

This minute order is effective immediately.  No formal order pursuant to CRC rule
3.1312 or other notice is required.