>Vassiliou
v. General Electric





















Filed
1/17/13 Vassiliou v. General Electric
CA5



















NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS







California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.







IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA

FIFTH APPELLATE DISTRICT


>

ANDREW VASSILIOU, Plaintiff and Appellant, v. GENERAL ELECTRIC COMPANY et al., Defendants and Respondents.

F063385 (Super. Ct. No. CV54998) >OPINION

APPEAL
from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Tuolumne
County. James A. Boscoe, Judge.

Andrew
Vassiliou, in pro. per., for Plaintiff and Appellant.

Sedgwick
LLP, Charles T. Sheldon and Derek S. Johnson for Defendant and Respondent
General Electric Company.

Brydon
Hugo & Parker, John R. Brydon, Brian H. Buddell, Thomas J. Moses and Elsa
Sham for Defendant and Respondent Union Carbide Corporation.

Horvitz
& Levy, Lisa Perrochet, Dean A. Bochner; DeHay & Elliston, Jennifer
Judin and Eduardo Robles for Defendant and Respondent Kaiser Gypsum Company,
Inc.

-ooOoo-

Appellant,
Andrew Vassiliou, challenges the judgment dismissing his personal injury action
against respondents, General Electric Company (GE), Union Carbide Corporation
(Union Carbide) and Kaiser Gypsum Company, Inc. (Kaiser Gypsum), entered after
the trial court sustained respondents’ demurrers to the third amended complaint
without leave to amend. The court ruled
that appellant had not stated a cause of action for injury resulting from
exposure to toxic materials because he had not alleged that he was exposed to a
particular product manufactured by any of these respondents.

Appellant
asserts that the information stated in the complaint is “not vague it is
factual” and that the “defendants lied and tricked [the] judge.” However, appellant has neither supported his
contentions by argument or citation of authority nor met his burden to show
reversible error. Moreover, the
complaint is insufficient as a matter of
law. Therefore, the judgment will be
affirmed.

BACKGROUND

Appellant filed
a complaint alleging that he was injured as a child by wallboard, ceiling
tiles, and other unidentified asbestos containing products manufactured by
multiple defendants, including GE and Union Carbide, between 1966 and 1973 at
his parents’ restaurant. Thereafter,
appellant filed a first amended complaint, modifying the defendants but
otherwise making the same allegations.
Appellant later added Kaiser Gypsum as a Doe defendant.

Kaiser Gypsum
demurred to the first amended complaint. The trial court sustained the demurrer on the
ground that the complaint was uncertain, ambiguous, and unintelligible and
granted appellant leave to amend.

Appellant then
filed a second amended complaint stating a single cause of action for
intentional tort specifically naming 13 defendants. Appellant alleged that he was injured when he
was exposed to asbestos containing products.
With respect to respondents, appellant alleged:

“Defendant Union Carbide manufactured
the following products or asbestos-containing components of the following
products, phenolic resin used in plywood paneling used in the dining room of
the restaurant, adhesive used to hold on the bar rail, acoustic ceiling tile,
wallboard, tile, tile glue, fireboard, exterior stucco, material used in the
fireplace flue. [¶]…[¶]

“General Electric Company manufactured
asbestos wire insulation used in the restaurant and in the installation of, and
contained within the hood, and back bar chiller box of the restaurant.”

Kaiser
Gypsum again demurred. The court
sustained the demurrer to the second amended complaint with leave to amend.

Appellant’s
third amended complaint was identical to the second amended complaint except
appellant hand wrote in a “to[x]ic chemical list.” All three respondents demurred. Respondents argued that the complaint still
failed to satisfy the applicable pleading requirements. GE also noted that appellant admitted in
discovery that he was only age seven to nine years old during the alleged
exposure period and thus was unaware of any “‘brand names or identifying tags’”
on the products installed in his parents’ restaurant.

The trial court
sustained the demurrers without leave to amend for failure to state facts
sufficient to constitute a cause of action against respondents. The court concluded that, under >Bockrath v. Aldrich Chemical Co. (1999)
21 Cal.4th 71 (Bockrath), appellant
was “required to specifically allege exposure to toxic materials that he claims
caused his illness, and he must identify each specific product that allegedly
caused the injury.” The court found that
appellant had failed to allege that he was exposed to a particular product
manufactured by any of the moving defendants.

DISCUSSION

>1. Standard of review.

In reviewing a
ruling on a demurrer, the appellate court’s only task is to determine whether
the complaint states a cause of action.
(Gentry v. eBay, Inc. (2002)
99 Cal.App.4th 816, 824.) In doing so,
the court treats the demurrer as admitting all material facts properly pleaded,
but not contentions, deductions or conclusions of fact or law. (Blank
v. Kirwan (1985) 39 Cal.3d 311, 318.)
Further, the complaint must be given a reasonable interpretation,
reading it as a whole and its parts in their context. (Ibid.) The complaint’s allegations must be liberally
construed with a view to attaining substantial justice among the parties. (Semole
v. Sansoucie (1972) 28 Cal.App.3d 714, 719.)

When
a demurrer is sustained without leave to amend, the appellate court must decide
whether there is a reasonable possibility that the defect can be cured by
amendment. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) If so, the trial court abused its discretion
and the judgment will be reversed. (>Ibid.)
However, the appellant bears the burden of demonstrating that the trial
court erred in sustaining the demurrer.
(Zelig v. County of Los Angeles (2002)
27 Cal.4th 1112, 1126.) The appellant
must show how the defects in the complaint can be cured by amendment. (Goodman
v. Kennedy (1976) 18 Cal.3d 335, 349.)


>2. Appellant did not
state a cause of action for injury based on asbestos exposure.

A
plaintiff attempting to allege injury resulting from exposure to toxic
materials must comply with specific guidelines.
(Jones v. ConocoPhillips Co. (2011)
198 Cal.App.4th 1187, 1194.) To state
such a cause of action, the plaintiff must: (1) allege that he was exposed to
each of the toxic materials claimed to have caused a specific illness; (2)
identify each product that allegedly caused the injury, not simply allege that
the toxins in the defendants’ products caused it; (3) allege that as a result
of the exposure, the toxins entered his body; (4) allege that he suffers from a
specific illness, and that each toxin that entered his body was a substantial
factor in bringing about, prolonging, or aggravating that illness; and (5)
allege that each toxin he absorbed was manufactured or supplied by a named
defendant. (Bockrath, supra, 21 Cal.4th at p. 80.)

These
guidelines are designed to prevent overbroad litigation. “The law cannot tolerate lawsuits by
prospecting plaintiffs who sue multiple defendants on speculation that their
products may have caused harm over time through their exposure to toxins in
them, and who thereafter try to learn through discovery whether their
speculation was well-founded.” (>Bockrath, supra, 21 Cal.4th at p.
81.)

Here,
appellant has not stated the essential elements of a toxic exposure cause of
action. The third amended complaint does
not identify which of respondents’ products allegedly caused appellant’s
injury. Further, appellant does not
allege that he suffers from a specific illness and that each toxin that entered
his body was a substantial factor in bringing about such illness. Accordingly, the trial court properly
sustained respondents’ demurrers to the third amended complaint.

Moreover,
in his opening brief, appellant does not demonstrate how the defects in his
complaint could be cured by amendment.
In fact, appellant’s opening brief contains neither an intelligible
legal argument nor any citations to authority as are required to support his
contentions. (Kensington University v. Council for Private Postsecondary etc.
Education (1997) 54 Cal.App.4th 27, 42-43.)


Appellant did
attach a proposed fourth amended complaint to his reply brief. However, that proposed complaint does not
correct the insufficiencies. Although
appellant has drastically changed the allegations, he still has not identified
the products that allegedly caused his injury.
Rather, this complaint contains only generalizations to the effect that
the respondents manufactured, sold, supplied, etc. products containing asbestos. Thus, appellant has not met his burden of
demonstrating that the trial court abused its discretion when it sustained the
demurrers without leave to amend.

DISPOSITION

The judgment is
affirmed. Costs on appeal are awarded to
respondents.



_____________________

LEVY,
J.

WE CONCUR:





_____________________

WISEMAN, Acting P.J.





_____________________

PEÑA, J.