Preview
1 Douglas G. Wah, Esq. SBN 64692
Nicole B. Yuen, Esq. SBN 184120
2 FOLEY & MANSFIELD, PLLP
ELECTRONICALLY
2185 North California Boulevard, Suite 575
3 Walnut Creek, CA 94596 F I L E D
Telephone: (510) 590-9500 Superior Court of California,
County of San Francisco
4 Facsimile: (510) 590-9595
Email: nyuen@foleymansfield.com 10/08/2021
5 Clerk of the Court
BY: SANDRA SCHIRO
Attorneys for Defendant Deputy Clerk
6 COLUMBIA MECHANICAL CONTRACTORS, INC.
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF SAN FRANCISCO
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11 CAROL CHULICK, as Successor-in-Interest to Case No.: CGC-19-276757
and as Wrongful Death Heir of JOHN
12 CHULICK, Deceased; and DEBORAH [Assigned to Hon. Cynthia Ming-Mei Lee, Dept.
HAGEN and JOLEEN HAGLER, as Wrongful
13 Death Heirs of JOHN CHULICK, Deceased, 503]
14 Plaintiffs, DEFENDANT COLUMBIA MECHANICAL
CONTRACTORS, INC.’S MEMORANDUM
15 vs. OF POINTS AND AUTHORITIES IN
SUPPORT OF MOTION FOR SUMMARY
16 RILEY POWER INC., et al., JUDGMENT
17 Defendants. [Filed and Served Concurrently with Notice of
Motion; Separate Statement of Undisputed Facts;
18 Index of Exhibits; Declaration of Nicole B. Yuen;
Request for Judicial Notice; and [Proposed] Order]
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Date: December 23, 2021
20 Time: 9:30 a.m.
Department: 503
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Complaint Filed: January 22, 2019
24 Trial Date: December 27, 2021
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DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
1 I. INTRODUCTION
2 Plaintiffs Carol Chulick, Deborah Hagen and Joleen Hagler (“Plaintiffs”) allege defendant
3 Columbia Mechanical Contractors, Inc. (“Columbia”) is liable for decedent John Chulick’s
4 (“Decedent”) exposure to asbestos.
5 The Court should grant Columbia’s motion for summary judgment because there is no reliable
6 evidence that Decedent ever worked with or around any employees of Columbia, let alone one working
7 with an asbestos-containing product. Thus, Plaintiffs cannot establish an essential element of his cause
8 of action--causation. Plaintiffs’ sole product identification witness, Robert Cantley, testified that the
9 job he identified Columbia being present at was the March 1971 job at the Russ Building. Decedent’s
10 own job calendar and deposition testimony shows that this job took place in March of 1971. Columbia
11 did not exist or perform any work until August of 1971. Because the facts demonstrate plaintiff does
12 not posses and cannot reasonably obtain necessary evidence, the Court should grant Columbia’s
13 motion for summary judgment.
14 II. UNDISPUTED MATERIAL FACTS
15 A. The Pleadings and Exposure Claim Against Columbia
16 On January 22, 2019 plaintiffs filed their complaint for damages. (Undisputed Material Fact
17 (“UMF”) No. 1.) Plaintiffs allege Columbia and other entities are liable for decedent’s purported
18 asbestos-related disease and pursue a negligence claim against Columbia. (UMF No. 1.)
19 The Complaint fails to set forth any facts to form the basis of any claim against Columbia. (Id.)
20 Plaintiffs allege in the Complaint that Columbia is liable for decedents exposure to asbestos
21 while he was performing work as an insulator at the Lockheed facility for two days on June 19 and
22 20, 1967, on June 22, 1971 for work done at the Naval Supply Center in Oakland, for worked
23 performed at San Francisco General Hospital on February 22 and 23, 1973, March 2 thru 22, 1974,
24 April 16 thru 30, 1975, and April 8 to the 9, 1975, and finally on May 4, 1978 for work done at Kaiser
25 Hospital in South San Francisco. (UMF No. 2.)
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DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
1 B. Columbia Was Not Named as a Defendant in The Personal Injury Complaint
2 On February 22, 2002 Decedent filed a Personal Injury Complaint in San Francisco County.
3 (UMF No. 3.) Columbia was not named as a defendant in the original complaint. (Id.) On April 4,
4 2004, Decedent filed an amended complaint adding additional defendants; again, Columbia was not
5 named as a defendant. (UMF No. 4.) On April 22, 2004, Plaintiff filed another amended complaint
6 adding more defendants, again Columbia was not named. (UMF No. 5.) On August 11, 2004, Decedent
7 filed yet another amended complaint, adding even more defendants, again Columbia was not named.
8 (UMF No. 6.) Finally, on September 3, 2004, Plaintiffs filed another amended complaint adding an
9 additional defendant, again Columbia was not named. (UMF No. 7.) Due to never being a party in the
10 Personal Injury action, Columbia did not appear at any of Decedent’s depositions. (UMF No. 8.)
11 C. Decedent Never Identified Columbia At Deposition
12 The Decedent was deposed over 14 days from 2003 to 2005; not once did Decedent identify
13 Columbia at his deposition. (UMF No. 9.) On June 2, 2003, Decedent was asked at his deposition if
14 he remembered the identity of any of the contractors at the Lockheed facility where he worked for two
15 days in June of 1967, he did not. (UMF No. 10.) On November 17, 2003, Decedent was asked at his
16 deposition if he remembered the identity of any of the contractors at the Oakland Naval Supply Center
17 where he worked for one day in June of 1971, he did not. (UMF No. 11.)
18 On November 18, 2003, Decedent was asked at his deposition if he remembered the identity
19 of any of the contractors at the San Francisco General Hospital when he worked there in February
20 1973, he did not. (UMF No. 12.) On October 12, 2004, Decedent was asked at his deposition if he
21 remembered the identity of any of the contractors at the San Francisco General Hospital when he
22 worked there in April 1974, he did not. (UMF No. 13.) On the same day, Decedent was asked if he
23 remembered the identity of any of the contractors at the San Francisco General Hospital when he
24 worked there in 1975, he did not. (UMF No. 14.)
25 On November 17, 2003, Decedent testified that he worked at the Russ Building for one day; a
26 total of nine hours as noted in his March 1971 calendar entry. (UMF No. 15.) The insulation material
27 he used was supplied by his employer; his co-workers are no longer living. (UMF No. 16.) He did not
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DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
1 know the brand or manufacturer of any of the materials others used in his presence. (UMF No. 17.)
2 He did not know the identify of any other contractors on site. (UMF No. 18.)
3 On October 13, 2004, Decedent was asked at his deposition if he remembered the identity of
4 any of the contractors at the Kaiser Hospital in South San Francisco when he worked there in 1978,
5 he did not. (UMF No. 19.)
6 D. Plaintiff’s Standard Discovery Responses Did Not Identify Columbia and
7 Contain No Facts That Support The Claim That Columbia Exposed Decedent
8 To Asbestos
9 Plaintiff served Responses to Standard Interrogatories, on March 18, 2019 wherein they claim
10 that decedent was an insulator at numerous job sites. (UMF No. 20.) However, Plaintiff did not identify
11 Columbia at any job sites over Decedents almost 40 year work history, including the job sites that they
12 initially identified Columbia at in the Complaint. (Id.) The responses identify a single one day job at
13 the Russ Building on March 19, 1971. (Id.)
14 E. Fact Discovery Contains No Evidence To Support Their Claim That Columbia
15 Exposed Decent To Asbestos.
16 Columbia served comprehensive “state all facts” discovery on plaintiff Carol Chulick, which
17 requests she identify the facts, witnesses, and documents that support her claim Decedent was exposed
18 to asbestos from Columbia. (UMF No. 21.) Plaintiffs responses identify four job sites: Kaiser Hospital
19 in South San Francisco, Lockheed in Sunnyvale, Naval Supply Center in Oakland, and San Francisco
20 General Hospital in San Francisco in the 1960s and 1970s. (UMF No. 22.) Plaintiffs’ responses
21 conclude that Decedent was “exposed” to “asbestos-containing products” from Columbia’s
22 “personnel” handling the “asbestos-containing products.” (No. 23.) Plaintiffs rely on Decedent’s
23 deposition testimony; Carl Ramsey’s deposition testimony from 2004; Plaintiffs and Robert Cantley.
24 (No. 24.)
25 Plaintiffs stipulated that they would not offer product identification testimony. (UMF No. 25.).
26 Mr. Ramsey also did not identify Columbia at his deposition. (UMF No. 26.)
27 Mr. Cantley’s testimony cannot implicate Columbia, as the work sites pre-dates Columbia’s
28 existence. Robert Cantley, Plaintiffs’ sole product identification witness testified in June of 2021 that
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DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
1 he recalled only one job site that he worked at with Decedent with Columbia being the mechanical
2 contractor and it was at the Russ Building in 1971. (UMF No. 27.) Mr. Cantley confirmed that the
3 Russ Building job identified in Plaintiffs’ interrogatories for the date of March 19, 1971, was the job
4 he recalled. (UMF No. 28.)
5 F. Columbia Did Not Exist Prior To August Of 1971.
6 Columbia did not incorporate until 1971 and did not perform its first job until August of 1971.
7 (UMF No. 29.) It is an impossibility for Columbia to have been on a job site in March of 1971.
8 III. LEGAL ANALYSIS
9 A. Summary Judgment Is Warranted When Plaintiff’s Cannot Prove An Essential
10 Element Of their Claim.
11 A party may move for summary judgment in any action or proceeding if it is contended that
12 the action has no merit. Cal. Code Civil Proc. § 437c(a). A defendant may meet its burden of showing
13 that a cause of action has no merit by establishing that one or more elements of the cause of action
14 cannot be established, or that there is a complete defense to that cause of action. Id. at
15 § 437c(o)(2). A moving party is entitled to summary judgment “if all the moving papers submitted
16 show that there is no triable issue of material fact and that the moving party is entitled to judgment as
17 a matter of law.” (Code Civ. Proc. § 437c(c); see Chaknova v. Wilbur-Ellis Co. (1999) 69 Cal.App.4th
18 962, 974.)
19 A defendant makes a showing sufficient to shift its burden to the plaintiff when the defendant
20 shows that the “plaintiff does not possess, and cannot reasonably obtain, needed evidence…” Aguilar.
21 After the burden has shifted, the plaintiff must then present evidence showing there is a triable issue
22 of material fact as to the attacked element. See Cal. Code Civil Proc. § 437c subd. (p)(2) and (Hunter
23 v. Pacific Mechanical Corp. (1995) 37 Cal.App.4th 1282, 1285-1286 [disapproved on unrelated
24 grounds in Aguilar at 854-855, fn 23].) Summary judgment is warranted if no triable issue is
25 established. (Code Civ. Proc. § 437c(o).)
26 The plaintiff “may not rely upon the mere allegations or denials of its pleadings to show that a
27 triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable
28 issue of material fact exists as to that cause of action or a defense thereto.” Id. Plaintiff’s evidence
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DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
1 cannot be based on speculation or conjecture. Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th
2 96, 102. Further, factually devoid discovery responses are prima facie evidence that plaintiffs “‘[do]
3 not possess and cannot reasonably obtain, needed evidence’ to support their claim.” Id. at 106 (quoting
4 Aguilar, 25 Cal.App.4th at 854).
5 Summary judgment is proper in this case because Columbia has demonstrated with affirmative
6 evidence that Plaintiffs cannot make a threshold showing that decedent was exposed to asbestos from
7 the work of any personnel of Columbia.
8 B. Columbia Has Shifted the Burden of Production to PlaintiffS
9 The Chaknova and Hunter defendants relied on plaintiffs’ discovery responses to establish the
10 plaintiffs were personally aware of any facts that would establish the critical element of causation.
11 (Chaknova at 976; Hunter at 1289; see also McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th
12 1098, 1103-1104.) Like the Chaknova, Hunter, and McGonnell plaintiffs, plaintiff lacks evidence
13 decedent was exposed to asbestos from Columbia. Columbia has submitted affirmative evidence to
14 show that Plaintiffs cannot present any reliable or admissible evidence that Decedent was exposed to
15 asbestos from an employee of Columbia. Columbia has therefore shifted the burden of production to
16 plaintiffs, who is now obligated to produce evidence that supports their claim decedent was exposed
17 to asbestos from Columbia. (Chaknova at 976; Hunter at 1289.) Absent such a showing, the Court
18 may presume plaintiffs’ claim against Columbia is not supported by evidence (Union Bank v. Superior
19 Court (1995) 31 Cal.App.4th 573, 593) and should grant this motion for summary judgment to avoid
20 a trial rendered useless by a directed verdict (Aguilar at 855).
21 C. Decedent’s Deposition Cannot Be Used Affirmatively Against Columbia
22 Code of Civil Procedure section 2025.620 (c)(2) lists a number of circumstances under which
23 a deposition may be used for any purpose if the Court determines the witness is “unavailable,”
24 including that the deponent is dead. (Code Civ. Proc. § 2025.620 (c)(2).) Section 2025.620 (c)(3)
25 contains a catch all provision that permits courts to admit depositions under “exceptional
26 circumstances” when using the deposition is “in the interests of justice.” (Code Civ. Proc.
27 § 2025.620 (c)(3).)
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DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
1 Although the Court may find decedent is “unavailable” as defined by Code of Civil Procedure
2 section 2025.620, the Court should determine this is not an exceptional circumstance that is supported
3 by the interests of justice. In fact, the interests of justice are best served by refusing to admit Decedents
4 deposition against Columbia because the absence of any opportunity to cross examination by
5 Columbia violates Columbia’s due process rights under the federal and state Constitutions. (Anderson
6 v. Superior Court (1989) 213 Cal.App.3d 1321, 1331, fn. 6.)
7 Columbia’s due process rights include the right to produce evidence and cross examine
8 witnesses. (Seering v. Department of Social Services (1987) 194 Cal. App.3d 298, 304; People v.
9 Abner (1962) 209 Cal.App.2d 484, 489.) Because Columbia was never named in the Personal Injury
10 matter, (through no fault of their own), Columbia had no “real opportunity of cross-examination.” Its
11 due process rights will be violated if the Court does not rule decedent’s deposition is inadmissible
12 against Columbia. (Stevenson v. Superior Court (1979) 91 Cal.App.3d 925, 930.)
13 However, the testimony is admissible against Plaintiffs. Decedent’s testimony confirms the
14 time frame in which he worked at the Russ Building—a time frame that Mr. Cantley also confirmed
15 in his own deposition in this matter. The date of the work was March 19, 1971. While Mr. Cantley
16 recalled a multiple day job, Decedent, who was the best person to provide testimony regarding his
17 work, testified to it being a one day job. Add to Decedent’s testimony, his own work calendar shows
18 the Russ Building job as a single day: March 19, 1971. As presented with Columbia’s affirmative
19 evidence, that it did not perform work until August of 1971, it is an impossibility for Columbia to have
20 been at this jobsite with Decedent in March of 1971.
21 D. PLAINTIFFS LACK ESSENTIAL CAUSATION EVIDENCE.
22 1. Plaintiffs Have Not Proven That Decedent Was Exposed To Any
23 Respirable Asbestos Fibers Due to the Activities of Columbia.
24 California law requires “a sufficient factual nexus between the negligent conduct and the
25 injury.” (Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1414.) Plaintiffs cannot
26 establish this nexus, nor demonstrate causation, therefore their action against Columbia fails as a
27 matter of law.
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DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
1 “Causation’ is an essential element of a tort action. Defendants are not
liable unless their conduct … was a ‘legal cause’ of plaintiff’s injury.
2 Generally, the burden falls on the plaintiff to establish causation … In
the context of products liability actions, the plaintiff must prove that the
3 defective products supplied by the defendant were a substantial factor
in bringing about his or her injury.”
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5 (Whiteley v. Philip Morris Inc. (2004) 117 Cal.App.4th 635, 696 (citations omitted).)
6 To demonstrate causation in a case alleging latent injuries from asbestos, a plaintiff must prove
7 two facts: He “must first establish some threshold exposure to the defendant’s defective asbestos-
8 containing products…and [second, he] must further establish in reasonable medical probability that a
9 particular exposure or series of exposures was a ‘legal cause’ of his injury, i.e., a substantial factor in
10 bringing about the injury.” Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 975-976. See
11 Lineaweaver v. Plant Insul’n Co. (1995) 31 Cal.App.4th 1409; McGonnell v. Kaiser Gypsum Co.
12 (2002) 98 Cal.App.4th 109, 1103. In Smith v. AC&S (1994) 31 Cal.App.4th 77, the court stated it was
13 not sufficient for plaintiffs to prove that defendant’s products were located somewhere in the facility;
14 plaintiff must specifically prove that plaintiff was exposed to respirable asbestos fibers from materials
15 for which the defendant is responsible. See also Hunter v. Pacific Mechanical Corp. (1995) 37
16 Cal.App.4th 1282.
17 The quality of evidence of exposure must be sufficient “to allow the trier of fact to find the
18 underlying fact in favor of the party opposing the motion for summary judgment.” Casey v. Perini
19 Corporation, (2012) 206 Cal.App.4th 1222, citing McGonnell, supra 98 Cal. App. 4th at p. 1105. In
20 Casey v. Perini Corporation, the First Appellate District upheld the lower courts’ granting of Perini
21 Corporation’s motion for summary judgment based on plaintiff’s inability to provide competent
22 evidence of exposure to plaintiff by Perini. Id. at 1240. The Court citing McGonnell found that
23 plaintiff’s evidence was speculative and failed to show any connection between the activities of Perini
24 and the plaintiff’s exposure to asbestos. Namely, the court found that plaintiff’s discovery responses
25 and deposition testimony lacked any evidence to support the claims that Perini exposed plaintiff.
26 Perini submitted comprehensive discovery requests asking for all facts that support plaintiff’s claims
27 against Perini. Id. at 1230-1231. Plaintiff’s responses contained general allegations that Perini
28 contractors disturbed asbestos-containing products in plaintiff’s presence which in turn exposed
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DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
1 plaintiff to asbestos. Id. at 1231. The court found that plaintiff’s answers were not enough to support
2 a claim and contained “little more than general allegations against Perini and did not state specific
3 facts showing that Casey was actually exposed to asbestos and/or asbestos-containing products due to
4 Perini’s activities.” Id. at 1231. The court further went on to state that plaintiff’s deposition testimony
5 was insufficient to support claims against Perini. Id. at 1230. Plaintiff testified that he saw Perini
6 workers performing work but admitted he did not know what materials contained asbestos and which
7 ones did not and could not recall the names of any products on the job site. Id. at 1230. The court
8 also noted that plaintiffs failed to identify any fact witnesses who had knowledge of the contents of
9 the materials on plaintiff’s job sites. Id. at 1232. The court concluded that this case was analogous to
10 McGonnell, because “all that exists is speculation as to causation.” Id. at 1240.
11 In the instant matter, decedent’s deposition testimony is equally devoid of any competent
12 evidence, or any evidence at all, that Columbia exposed Decedent to asbestos. Mr. Ramsey’s
13 deposition testimony fails to provide any evidence of. Mr. Cantley’s testimony, along with the
14 corporate start date demonstrates that his testimony cannot implicate Columbia.
15 In sum, plaintiffs cannot provide any evidence that Columbia exposed decedent to asbestos—
16 since the only job site where a witness testified to seeing “Columbia” employees was a job that took
17 place months before the company was even in business. This confirms plaintiffs do not possess and
18 cannot reasonably obtain necessary evidence to support their exposure claims against Columbia. As
19 in Casey, plaintiffs have fabricated conclusory, vague, and overbroad statements in discovery about
20 Columbia’s work, in an attempt to prove Columbia exposed the decedent to asbestos. These discovery
21 responses are in no way proof of exposure. Absent such evidence of causation, Columbia’s motion
22 for summary judgment should be granted on all counts alleged against it.
23 IV. CONCLUSION
24 Although a party may rely on reasonable inferences drawn from direct and circumstantial
25 evidence to satisfy its burden on summary judgment, Courts may not draw inferences from thin air.
26 (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 483; McGonnell at 1106.) There is no
27 admissible evidence that Decedent worked at any job site with Columbia Mechanical, let alone with
28 any asbestos-containing product.
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DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
1 Mr. Cantley’s identification is a miss identification as Columbia did not exist nor did they
2 perform work at any job site in March of 1971. Mr. Chulick’s testimony, Mr. Ramsey’s testimony,
3 Mr. Cantley’s testimony do not permit a trier of fact to reasonably conclude Columbia is liable for
4 decedent’s injures. Therefore, the Court should grant Columbia’s motion for summary judgment.
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DATED: October 8, 2021 FOLEY & MANSFIELD, PLLP
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By:
9 Douglas G. Wah
Nicole B. Yuen
10 Attorneys for Defendant
COLUMBIA MECHANICAL CONTRACTORS,
11 INC.
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DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
1 PROOF OF SERVICE
2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
3 I am employed in the County of Los Angeles, State of California. I am over the age of 18 and
not a party to the within action; my business address is 181 W. Huntington Drive, Suite 210, Monrovia,
4 CA 91016.
5 On October 8, 2021, I served the foregoing document described as: DEFENDANT
COLUMBIA MECHANICAL CONTRACTORS, INC.’S MEMORANDUM OF POINTS AND
6 AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT on the interested
parties in this action by placing a true copy thereof enclosed in sealed envelope(s) addressed as
7 follows:
8 Via File & ServeXpress & Personal Service Via File & ServeXpress
9 Alan R. Brayton, Esq.
David R. Donadio, Esq. ALL DEFENSE COUNSEL
10 DDonadio@braytonlaw.com
James P. Nevin, Esq.
11 Nancy Williams, Esq.
BRAYTON PURCELL LLP
12 Attorneys at Law
13 222 Rush Landing Road
P.O. Box 6169
14 Novato, CA 94948-6169
Telephone: (415) 898-1555
15 Attorneys for Plaintiff
16 (BY ELECTRONIC VERSION) Pursuant to San Francisco Court General Order No. 158,
☒
CCP 1010.6 and CRC 2.251, or pursuant to the Stipulation and Order Authorizing Electronic
17 Service, or by an agreement of the parties, I electronically e-served through File &
ServeXpress and caused the document(s) to be sent to the person(s) at the email addresses
18 designated on the Transaction Receipt located on the File & ServeXpress website. To the best
of my knowledge, at the time of the transmission, the transmission was reported as complete
19 and without error.
20 (BY MESSENGER SERVICE) I served the documents by placing them in an envelope or
☒
package addressed to the persons listed above and provided such document(s) to a
21 professional messenger service for service. (To Plaintiffs Only)
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☒ [STATE] I declare under penalty of perjury under the laws of the State of California that the
23 above is true and correct.
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Executed on October 8, 2021, Monrovia, California
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DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
Preview
1 Douglas G. Wah, Esq. SBN 64692 Nicole B. Yuen, Esq. SBN 184120 2 FOLEY & MANSFIELD, PLLP ELECTRONICALLY 2185 North California Boulevard, Suite 575 3 Walnut Creek, CA 94596 F I L E D Telephone: (510) 590-9500 Superior Court of California, County of San Francisco 4 Facsimile: (510) 590-9595 Email: nyuen@foleymansfield.com 10/08/2021 5 Clerk of the Court BY: SANDRA SCHIRO Attorneys for Defendant Deputy Clerk 6 COLUMBIA MECHANICAL CONTRACTORS, INC. 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SAN FRANCISCO 10 11 CAROL CHULICK, as Successor-in-Interest to Case No.: CGC-19-276757 and as Wrongful Death Heir of JOHN 12 CHULICK, Deceased; and DEBORAH [Assigned to Hon. Cynthia Ming-Mei Lee, Dept. HAGEN and JOLEEN HAGLER, as Wrongful 13 Death Heirs of JOHN CHULICK, Deceased, 503] 14 Plaintiffs, DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S MEMORANDUM 15 vs. OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY 16 RILEY POWER INC., et al., JUDGMENT 17 Defendants. [Filed and Served Concurrently with Notice of Motion; Separate Statement of Undisputed Facts; 18 Index of Exhibits; Declaration of Nicole B. Yuen; Request for Judicial Notice; and [Proposed] Order] 19 Date: December 23, 2021 20 Time: 9:30 a.m. Department: 503 21 22 23 Complaint Filed: January 22, 2019 24 Trial Date: December 27, 2021 25 26 27 28 1 DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 I. INTRODUCTION 2 Plaintiffs Carol Chulick, Deborah Hagen and Joleen Hagler (“Plaintiffs”) allege defendant 3 Columbia Mechanical Contractors, Inc. (“Columbia”) is liable for decedent John Chulick’s 4 (“Decedent”) exposure to asbestos. 5 The Court should grant Columbia’s motion for summary judgment because there is no reliable 6 evidence that Decedent ever worked with or around any employees of Columbia, let alone one working 7 with an asbestos-containing product. Thus, Plaintiffs cannot establish an essential element of his cause 8 of action--causation. Plaintiffs’ sole product identification witness, Robert Cantley, testified that the 9 job he identified Columbia being present at was the March 1971 job at the Russ Building. Decedent’s 10 own job calendar and deposition testimony shows that this job took place in March of 1971. Columbia 11 did not exist or perform any work until August of 1971. Because the facts demonstrate plaintiff does 12 not posses and cannot reasonably obtain necessary evidence, the Court should grant Columbia’s 13 motion for summary judgment. 14 II. UNDISPUTED MATERIAL FACTS 15 A. The Pleadings and Exposure Claim Against Columbia 16 On January 22, 2019 plaintiffs filed their complaint for damages. (Undisputed Material Fact 17 (“UMF”) No. 1.) Plaintiffs allege Columbia and other entities are liable for decedent’s purported 18 asbestos-related disease and pursue a negligence claim against Columbia. (UMF No. 1.) 19 The Complaint fails to set forth any facts to form the basis of any claim against Columbia. (Id.) 20 Plaintiffs allege in the Complaint that Columbia is liable for decedents exposure to asbestos 21 while he was performing work as an insulator at the Lockheed facility for two days on June 19 and 22 20, 1967, on June 22, 1971 for work done at the Naval Supply Center in Oakland, for worked 23 performed at San Francisco General Hospital on February 22 and 23, 1973, March 2 thru 22, 1974, 24 April 16 thru 30, 1975, and April 8 to the 9, 1975, and finally on May 4, 1978 for work done at Kaiser 25 Hospital in South San Francisco. (UMF No. 2.) 26 /// 27 /// 28 /// 2 DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 B. Columbia Was Not Named as a Defendant in The Personal Injury Complaint 2 On February 22, 2002 Decedent filed a Personal Injury Complaint in San Francisco County. 3 (UMF No. 3.) Columbia was not named as a defendant in the original complaint. (Id.) On April 4, 4 2004, Decedent filed an amended complaint adding additional defendants; again, Columbia was not 5 named as a defendant. (UMF No. 4.) On April 22, 2004, Plaintiff filed another amended complaint 6 adding more defendants, again Columbia was not named. (UMF No. 5.) On August 11, 2004, Decedent 7 filed yet another amended complaint, adding even more defendants, again Columbia was not named. 8 (UMF No. 6.) Finally, on September 3, 2004, Plaintiffs filed another amended complaint adding an 9 additional defendant, again Columbia was not named. (UMF No. 7.) Due to never being a party in the 10 Personal Injury action, Columbia did not appear at any of Decedent’s depositions. (UMF No. 8.) 11 C. Decedent Never Identified Columbia At Deposition 12 The Decedent was deposed over 14 days from 2003 to 2005; not once did Decedent identify 13 Columbia at his deposition. (UMF No. 9.) On June 2, 2003, Decedent was asked at his deposition if 14 he remembered the identity of any of the contractors at the Lockheed facility where he worked for two 15 days in June of 1967, he did not. (UMF No. 10.) On November 17, 2003, Decedent was asked at his 16 deposition if he remembered the identity of any of the contractors at the Oakland Naval Supply Center 17 where he worked for one day in June of 1971, he did not. (UMF No. 11.) 18 On November 18, 2003, Decedent was asked at his deposition if he remembered the identity 19 of any of the contractors at the San Francisco General Hospital when he worked there in February 20 1973, he did not. (UMF No. 12.) On October 12, 2004, Decedent was asked at his deposition if he 21 remembered the identity of any of the contractors at the San Francisco General Hospital when he 22 worked there in April 1974, he did not. (UMF No. 13.) On the same day, Decedent was asked if he 23 remembered the identity of any of the contractors at the San Francisco General Hospital when he 24 worked there in 1975, he did not. (UMF No. 14.) 25 On November 17, 2003, Decedent testified that he worked at the Russ Building for one day; a 26 total of nine hours as noted in his March 1971 calendar entry. (UMF No. 15.) The insulation material 27 he used was supplied by his employer; his co-workers are no longer living. (UMF No. 16.) He did not 28 3 DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 know the brand or manufacturer of any of the materials others used in his presence. (UMF No. 17.) 2 He did not know the identify of any other contractors on site. (UMF No. 18.) 3 On October 13, 2004, Decedent was asked at his deposition if he remembered the identity of 4 any of the contractors at the Kaiser Hospital in South San Francisco when he worked there in 1978, 5 he did not. (UMF No. 19.) 6 D. Plaintiff’s Standard Discovery Responses Did Not Identify Columbia and 7 Contain No Facts That Support The Claim That Columbia Exposed Decedent 8 To Asbestos 9 Plaintiff served Responses to Standard Interrogatories, on March 18, 2019 wherein they claim 10 that decedent was an insulator at numerous job sites. (UMF No. 20.) However, Plaintiff did not identify 11 Columbia at any job sites over Decedents almost 40 year work history, including the job sites that they 12 initially identified Columbia at in the Complaint. (Id.) The responses identify a single one day job at 13 the Russ Building on March 19, 1971. (Id.) 14 E. Fact Discovery Contains No Evidence To Support Their Claim That Columbia 15 Exposed Decent To Asbestos. 16 Columbia served comprehensive “state all facts” discovery on plaintiff Carol Chulick, which 17 requests she identify the facts, witnesses, and documents that support her claim Decedent was exposed 18 to asbestos from Columbia. (UMF No. 21.) Plaintiffs responses identify four job sites: Kaiser Hospital 19 in South San Francisco, Lockheed in Sunnyvale, Naval Supply Center in Oakland, and San Francisco 20 General Hospital in San Francisco in the 1960s and 1970s. (UMF No. 22.) Plaintiffs’ responses 21 conclude that Decedent was “exposed” to “asbestos-containing products” from Columbia’s 22 “personnel” handling the “asbestos-containing products.” (No. 23.) Plaintiffs rely on Decedent’s 23 deposition testimony; Carl Ramsey’s deposition testimony from 2004; Plaintiffs and Robert Cantley. 24 (No. 24.) 25 Plaintiffs stipulated that they would not offer product identification testimony. (UMF No. 25.). 26 Mr. Ramsey also did not identify Columbia at his deposition. (UMF No. 26.) 27 Mr. Cantley’s testimony cannot implicate Columbia, as the work sites pre-dates Columbia’s 28 existence. Robert Cantley, Plaintiffs’ sole product identification witness testified in June of 2021 that 4 DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 he recalled only one job site that he worked at with Decedent with Columbia being the mechanical 2 contractor and it was at the Russ Building in 1971. (UMF No. 27.) Mr. Cantley confirmed that the 3 Russ Building job identified in Plaintiffs’ interrogatories for the date of March 19, 1971, was the job 4 he recalled. (UMF No. 28.) 5 F. Columbia Did Not Exist Prior To August Of 1971. 6 Columbia did not incorporate until 1971 and did not perform its first job until August of 1971. 7 (UMF No. 29.) It is an impossibility for Columbia to have been on a job site in March of 1971. 8 III. LEGAL ANALYSIS 9 A. Summary Judgment Is Warranted When Plaintiff’s Cannot Prove An Essential 10 Element Of their Claim. 11 A party may move for summary judgment in any action or proceeding if it is contended that 12 the action has no merit. Cal. Code Civil Proc. § 437c(a). A defendant may meet its burden of showing 13 that a cause of action has no merit by establishing that one or more elements of the cause of action 14 cannot be established, or that there is a complete defense to that cause of action. Id. at 15 § 437c(o)(2). A moving party is entitled to summary judgment “if all the moving papers submitted 16 show that there is no triable issue of material fact and that the moving party is entitled to judgment as 17 a matter of law.” (Code Civ. Proc. § 437c(c); see Chaknova v. Wilbur-Ellis Co. (1999) 69 Cal.App.4th 18 962, 974.) 19 A defendant makes a showing sufficient to shift its burden to the plaintiff when the defendant 20 shows that the “plaintiff does not possess, and cannot reasonably obtain, needed evidence…” Aguilar. 21 After the burden has shifted, the plaintiff must then present evidence showing there is a triable issue 22 of material fact as to the attacked element. See Cal. Code Civil Proc. § 437c subd. (p)(2) and (Hunter 23 v. Pacific Mechanical Corp. (1995) 37 Cal.App.4th 1282, 1285-1286 [disapproved on unrelated 24 grounds in Aguilar at 854-855, fn 23].) Summary judgment is warranted if no triable issue is 25 established. (Code Civ. Proc. § 437c(o).) 26 The plaintiff “may not rely upon the mere allegations or denials of its pleadings to show that a 27 triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable 28 issue of material fact exists as to that cause of action or a defense thereto.” Id. Plaintiff’s evidence 5 DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 cannot be based on speculation or conjecture. Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 2 96, 102. Further, factually devoid discovery responses are prima facie evidence that plaintiffs “‘[do] 3 not possess and cannot reasonably obtain, needed evidence’ to support their claim.” Id. at 106 (quoting 4 Aguilar, 25 Cal.App.4th at 854). 5 Summary judgment is proper in this case because Columbia has demonstrated with affirmative 6 evidence that Plaintiffs cannot make a threshold showing that decedent was exposed to asbestos from 7 the work of any personnel of Columbia. 8 B. Columbia Has Shifted the Burden of Production to PlaintiffS 9 The Chaknova and Hunter defendants relied on plaintiffs’ discovery responses to establish the 10 plaintiffs were personally aware of any facts that would establish the critical element of causation. 11 (Chaknova at 976; Hunter at 1289; see also McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 12 1098, 1103-1104.) Like the Chaknova, Hunter, and McGonnell plaintiffs, plaintiff lacks evidence 13 decedent was exposed to asbestos from Columbia. Columbia has submitted affirmative evidence to 14 show that Plaintiffs cannot present any reliable or admissible evidence that Decedent was exposed to 15 asbestos from an employee of Columbia. Columbia has therefore shifted the burden of production to 16 plaintiffs, who is now obligated to produce evidence that supports their claim decedent was exposed 17 to asbestos from Columbia. (Chaknova at 976; Hunter at 1289.) Absent such a showing, the Court 18 may presume plaintiffs’ claim against Columbia is not supported by evidence (Union Bank v. Superior 19 Court (1995) 31 Cal.App.4th 573, 593) and should grant this motion for summary judgment to avoid 20 a trial rendered useless by a directed verdict (Aguilar at 855). 21 C. Decedent’s Deposition Cannot Be Used Affirmatively Against Columbia 22 Code of Civil Procedure section 2025.620 (c)(2) lists a number of circumstances under which 23 a deposition may be used for any purpose if the Court determines the witness is “unavailable,” 24 including that the deponent is dead. (Code Civ. Proc. § 2025.620 (c)(2).) Section 2025.620 (c)(3) 25 contains a catch all provision that permits courts to admit depositions under “exceptional 26 circumstances” when using the deposition is “in the interests of justice.” (Code Civ. Proc. 27 § 2025.620 (c)(3).) 28 /// 6 DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 Although the Court may find decedent is “unavailable” as defined by Code of Civil Procedure 2 section 2025.620, the Court should determine this is not an exceptional circumstance that is supported 3 by the interests of justice. In fact, the interests of justice are best served by refusing to admit Decedents 4 deposition against Columbia because the absence of any opportunity to cross examination by 5 Columbia violates Columbia’s due process rights under the federal and state Constitutions. (Anderson 6 v. Superior Court (1989) 213 Cal.App.3d 1321, 1331, fn. 6.) 7 Columbia’s due process rights include the right to produce evidence and cross examine 8 witnesses. (Seering v. Department of Social Services (1987) 194 Cal. App.3d 298, 304; People v. 9 Abner (1962) 209 Cal.App.2d 484, 489.) Because Columbia was never named in the Personal Injury 10 matter, (through no fault of their own), Columbia had no “real opportunity of cross-examination.” Its 11 due process rights will be violated if the Court does not rule decedent’s deposition is inadmissible 12 against Columbia. (Stevenson v. Superior Court (1979) 91 Cal.App.3d 925, 930.) 13 However, the testimony is admissible against Plaintiffs. Decedent’s testimony confirms the 14 time frame in which he worked at the Russ Building—a time frame that Mr. Cantley also confirmed 15 in his own deposition in this matter. The date of the work was March 19, 1971. While Mr. Cantley 16 recalled a multiple day job, Decedent, who was the best person to provide testimony regarding his 17 work, testified to it being a one day job. Add to Decedent’s testimony, his own work calendar shows 18 the Russ Building job as a single day: March 19, 1971. As presented with Columbia’s affirmative 19 evidence, that it did not perform work until August of 1971, it is an impossibility for Columbia to have 20 been at this jobsite with Decedent in March of 1971. 21 D. PLAINTIFFS LACK ESSENTIAL CAUSATION EVIDENCE. 22 1. Plaintiffs Have Not Proven That Decedent Was Exposed To Any 23 Respirable Asbestos Fibers Due to the Activities of Columbia. 24 California law requires “a sufficient factual nexus between the negligent conduct and the 25 injury.” (Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1414.) Plaintiffs cannot 26 establish this nexus, nor demonstrate causation, therefore their action against Columbia fails as a 27 matter of law. 28 7 DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 “Causation’ is an essential element of a tort action. Defendants are not liable unless their conduct … was a ‘legal cause’ of plaintiff’s injury. 2 Generally, the burden falls on the plaintiff to establish causation … In the context of products liability actions, the plaintiff must prove that the 3 defective products supplied by the defendant were a substantial factor in bringing about his or her injury.” 4 5 (Whiteley v. Philip Morris Inc. (2004) 117 Cal.App.4th 635, 696 (citations omitted).) 6 To demonstrate causation in a case alleging latent injuries from asbestos, a plaintiff must prove 7 two facts: He “must first establish some threshold exposure to the defendant’s defective asbestos- 8 containing products…and [second, he] must further establish in reasonable medical probability that a 9 particular exposure or series of exposures was a ‘legal cause’ of his injury, i.e., a substantial factor in 10 bringing about the injury.” Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 975-976. See 11 Lineaweaver v. Plant Insul’n Co. (1995) 31 Cal.App.4th 1409; McGonnell v. Kaiser Gypsum Co. 12 (2002) 98 Cal.App.4th 109, 1103. In Smith v. AC&S (1994) 31 Cal.App.4th 77, the court stated it was 13 not sufficient for plaintiffs to prove that defendant’s products were located somewhere in the facility; 14 plaintiff must specifically prove that plaintiff was exposed to respirable asbestos fibers from materials 15 for which the defendant is responsible. See also Hunter v. Pacific Mechanical Corp. (1995) 37 16 Cal.App.4th 1282. 17 The quality of evidence of exposure must be sufficient “to allow the trier of fact to find the 18 underlying fact in favor of the party opposing the motion for summary judgment.” Casey v. Perini 19 Corporation, (2012) 206 Cal.App.4th 1222, citing McGonnell, supra 98 Cal. App. 4th at p. 1105. In 20 Casey v. Perini Corporation, the First Appellate District upheld the lower courts’ granting of Perini 21 Corporation’s motion for summary judgment based on plaintiff’s inability to provide competent 22 evidence of exposure to plaintiff by Perini. Id. at 1240. The Court citing McGonnell found that 23 plaintiff’s evidence was speculative and failed to show any connection between the activities of Perini 24 and the plaintiff’s exposure to asbestos. Namely, the court found that plaintiff’s discovery responses 25 and deposition testimony lacked any evidence to support the claims that Perini exposed plaintiff. 26 Perini submitted comprehensive discovery requests asking for all facts that support plaintiff’s claims 27 against Perini. Id. at 1230-1231. Plaintiff’s responses contained general allegations that Perini 28 contractors disturbed asbestos-containing products in plaintiff’s presence which in turn exposed 8 DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 plaintiff to asbestos. Id. at 1231. The court found that plaintiff’s answers were not enough to support 2 a claim and contained “little more than general allegations against Perini and did not state specific 3 facts showing that Casey was actually exposed to asbestos and/or asbestos-containing products due to 4 Perini’s activities.” Id. at 1231. The court further went on to state that plaintiff’s deposition testimony 5 was insufficient to support claims against Perini. Id. at 1230. Plaintiff testified that he saw Perini 6 workers performing work but admitted he did not know what materials contained asbestos and which 7 ones did not and could not recall the names of any products on the job site. Id. at 1230. The court 8 also noted that plaintiffs failed to identify any fact witnesses who had knowledge of the contents of 9 the materials on plaintiff’s job sites. Id. at 1232. The court concluded that this case was analogous to 10 McGonnell, because “all that exists is speculation as to causation.” Id. at 1240. 11 In the instant matter, decedent’s deposition testimony is equally devoid of any competent 12 evidence, or any evidence at all, that Columbia exposed Decedent to asbestos. Mr. Ramsey’s 13 deposition testimony fails to provide any evidence of. Mr. Cantley’s testimony, along with the 14 corporate start date demonstrates that his testimony cannot implicate Columbia. 15 In sum, plaintiffs cannot provide any evidence that Columbia exposed decedent to asbestos— 16 since the only job site where a witness testified to seeing “Columbia” employees was a job that took 17 place months before the company was even in business. This confirms plaintiffs do not possess and 18 cannot reasonably obtain necessary evidence to support their exposure claims against Columbia. As 19 in Casey, plaintiffs have fabricated conclusory, vague, and overbroad statements in discovery about 20 Columbia’s work, in an attempt to prove Columbia exposed the decedent to asbestos. These discovery 21 responses are in no way proof of exposure. Absent such evidence of causation, Columbia’s motion 22 for summary judgment should be granted on all counts alleged against it. 23 IV. CONCLUSION 24 Although a party may rely on reasonable inferences drawn from direct and circumstantial 25 evidence to satisfy its burden on summary judgment, Courts may not draw inferences from thin air. 26 (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 483; McGonnell at 1106.) There is no 27 admissible evidence that Decedent worked at any job site with Columbia Mechanical, let alone with 28 any asbestos-containing product. 9 DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 Mr. Cantley’s identification is a miss identification as Columbia did not exist nor did they 2 perform work at any job site in March of 1971. Mr. Chulick’s testimony, Mr. Ramsey’s testimony, 3 Mr. Cantley’s testimony do not permit a trier of fact to reasonably conclude Columbia is liable for 4 decedent’s injures. Therefore, the Court should grant Columbia’s motion for summary judgment. 5 6 DATED: October 8, 2021 FOLEY & MANSFIELD, PLLP 7 8 By: 9 Douglas G. Wah Nicole B. Yuen 10 Attorneys for Defendant COLUMBIA MECHANICAL CONTRACTORS, 11 INC. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 PROOF OF SERVICE 2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES 3 I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 181 W. Huntington Drive, Suite 210, Monrovia, 4 CA 91016. 5 On October 8, 2021, I served the foregoing document described as: DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S MEMORANDUM OF POINTS AND 6 AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT on the interested parties in this action by placing a true copy thereof enclosed in sealed envelope(s) addressed as 7 follows: 8 Via File & ServeXpress & Personal Service Via File & ServeXpress 9 Alan R. Brayton, Esq. David R. Donadio, Esq. ALL DEFENSE COUNSEL 10 DDonadio@braytonlaw.com James P. Nevin, Esq. 11 Nancy Williams, Esq. BRAYTON PURCELL LLP 12 Attorneys at Law 13 222 Rush Landing Road P.O. Box 6169 14 Novato, CA 94948-6169 Telephone: (415) 898-1555 15 Attorneys for Plaintiff 16 (BY ELECTRONIC VERSION) Pursuant to San Francisco Court General Order No. 158, ☒ CCP 1010.6 and CRC 2.251, or pursuant to the Stipulation and Order Authorizing Electronic 17 Service, or by an agreement of the parties, I electronically e-served through File & ServeXpress and caused the document(s) to be sent to the person(s) at the email addresses 18 designated on the Transaction Receipt located on the File & ServeXpress website. To the best of my knowledge, at the time of the transmission, the transmission was reported as complete 19 and without error. 20 (BY MESSENGER SERVICE) I served the documents by placing them in an envelope or ☒ package addressed to the persons listed above and provided such document(s) to a 21 professional messenger service for service. (To Plaintiffs Only) 22 ☒ [STATE] I declare under penalty of perjury under the laws of the State of California that the 23 above is true and correct. 24 Executed on October 8, 2021, Monrovia, California 25 26 Fabiola Areas 27 28 11 DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT