Preview
1 Douglas G. Wah, Esq. SBN 64692
Christine L. Hawkins, Esq. SBN 233502
2 Hanna M. Thompson, Esq. SBN 291653
ELECTRONICALLY
FOLEY & MANSFIELD, PLLP
3 2185 N. California Boulevard, Suite 575 F I L E D
Superior Court of California,
Walnut Creek, CA 94596 County of San Francisco
4 Telephone: (510) 590-9500
Facsimile: (510) 590-9595 09/12/2019
5 Email: hthompson@foleymansfield.com Clerk of the Court
BY: YOLANDA TABO-RAMIREZ
Deputy Clerk
6 Attorneys for Defendant
COLUMBIA MECHANICAL CONTRACTORS, INC.
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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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 “Asbestos-Related Case”
HAGEN and JOLEEN HAGLER, as Wrongful
13 Death Heirs of JOHN CHULICK, Deceased, DEFENDANT COLUMBIA MECHANICAL
CONTRACTORS, INC.’S MEMORANDUM
14 Plaintiffs, OF POINTS AND AUTHORITIES IN
SUPPORT OF MOTION FOR SUMMARY
15 vs. JUDGMENT
16 RILEY POWER INC., et al., Date: November 26, 2019
Time: 9:30 a.m.
17 Defendants. Dept.: 503
Judge: Hon. Cynthia Ming-mei Lee
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Trial Date: December 2, 2019
19 Complaint Filed: January 22, 2019
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DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S MEMORANDUM OF POINTS AND
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1 TABLE OF CONTENTS
2 I. INTRODUCTION ............................................................................................................................. 1
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II. UNDISPUTED MATERIAL FACTS ............................................................................................. 1
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A. THE PLEADINGS AND EXPOSURE CLAIM AGAINS COLUMBIA ...................................... 1
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B. COLUMBIA WAS NOT NAMED AS A DEFENDANT IN THE PERSONAL INJURY
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COMPLAINT; THEREFORE A COLUMBIA REPRESENTATIVE WAS NOT PRESENT AT
7 DECEDENT’S DEPOSITIONS ..................................................................................................... 1
8 C. DECEDENT NEVER IDENTIFIED COLUMBIA IN ANY OF HIS ................................... ……..2
9 D. PLAINTIFF’S STANDARD DISCOVERY RESPONSES DID NOT IDENTIFY
COLUMBIA AND CONTAIN NO FACTS THAT SUPPORT THE CLAIM THAT
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COLUMBIA EXPOSED DECEDENT TO ASBESTOS ............................................................... 2
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E. PLAINTIFF’S RESPONSES TO COLUMBIA’S DISCOVERY CONTAIN NO FACTS TO
12 SUPPORT THE CLAIM THAT COLUMBIA EXPOSED DECEDENT TO ASBESTOS .......... 3
13 i. Facts ............................................................................................................................................. 3
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ii. Witnesses ..................................................................................................................................... 3
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iii. Documents ................................................................................................................................... 3
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III. LEGAL ANALYSIS ...................................................................................................................... 4
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18 A. SUMMARY JUDGMENT IS WARRANTED WHEN PLAINTIFF’S CANNOT PROVE AN
ESSENTIAL ELEMENT OF THEIR CLAIM. .................................................................................... 4
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B. COLUMBIA HAS SHIFTED THE BURDEN OF PRODUCTION TO PLAINTIFF ................ 5
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C. THE INTERESTS OF JUSTICE ARE NOT SERVED BY ADMITTING DECEDENT’S
21 DEPOSITION AGAINST COLUMBIA ....................................................................................... 5
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D. PLAINTIFFS LACK ESSENTIAL CAUSATION EVIDENCE. .................................................. 6
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1. Plaintiffs Have Not Proven That Decedent Was Exposed To Any Respirable Asbestos Fibers
24 Due to the Activities of Columbia. ........................................................................................... 6
25 2. Plaintiffs Have Not Proven Decedent’s Alleged Injuries Were Caused By Activities of
26 Columbia at Any Location. ....................................................................................................... 8
27 IV. CONCLUSION.............................................................................................................................. 9
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1 TABLE OF AUTHORITIES
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CASES
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4 Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 102 .................................................... 4, 5
5 Anderson v. Superior Court (1989) 213 Cal.App.3d 1321, 1331 ......................................................... 6
6 Casey v. Perini Corporation, (2012) 206 Cal.App.4th 1222 ................................................................. 7
7 Casey v. Perini Corporation, the First Appellate District .................................................................... 7
8 Chaknova v. Wilbur-Ellis Co. (1999) 69 Cal.App.4th 962, 974.)...................................................... 4, 5
9 Dumin v. Owens-Corning Fiberglass Corp. (1994) 28 Cal.App.4th 650 .............................................. 8
10 Frank and Freedus v. Allstate Ins. Co. (1996) 45 Cal.App.4th 461, 468-46......................................... 9
11 Hunter v. Pacific Mechanical Corp. (1995) 37 Cal.App.4th 1282, 1285-1286 ....................... 4, 5, 7, 8
12 Lee v. Crusader Ins. Co. (1996) 49 Cal.App.4th 1750, 1756 ................................................................ 9
13 Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 483 ......................................................... 9
14 Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1414 ............................................. 6
15 McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098, 1103-1104.) ................................. 7, 9
16 Myricks v. Lynwood Unified School Dist. (1999) 74 Cal.App.4th 231, 237 ......................................... 9
17 People v. Abner (1962) 209 Cal.App.2d 484, 489 ................................................................................ 6
18 Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 975-976 ...................................................... 6
19 Seering v. Department of Social Services (1987) 194 Cal. App.3d 298, 304 ....................................... 6
20 Smith vs. AC&S (1994) 31 Cal.App.4th 77 ............................................................................................ 6
21 Stevenson v. Superior Court (1979) 91 Cal.App.3d 925, 930 .............................................................. 6
22 Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 593 ........................................................... 5
23 Whiteley v. Philip Morris Inc. (2004) 117 Cal.App.4th 635, 696.......................................................... 6
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STATUTES
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(Code Civ. Proc. § 437c(c) ................................................................................................................... 4
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(Code Civ. Proc. § 437c(o) ................................................................................................................... 4
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§ 437c(o)(2) .......................................................................................................................................... 4
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1 STATUTES (cont.)
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Cal. Code Civil Proc. § 437c subd. (p)(2)............................................................................................. 4
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Cal. Code Civil Proc. § 437c(a) ............................................................................................................ 4
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Code Civ. Proc. § 2025.620 (c)(3) ........................................................................................................ 5
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Code Civ. Proc. § 2025.620 (c)(2) ........................................................................................................ 5
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DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S MEMORANDUM OF POINTS AND
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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 Columbia was
6 not a party to the personal injury action when the parties deposed Decedent in 2003, 2004 and 2005.
7 Additionally, there was no identification of Columbia at Decedent and decedents co worker Mr. Carl
8 Ramsey depositions. Because the facts demonstrate plaintiff does not posses and cannot reasonably
9 obtain necessary evidence, the Court should grant Columbia’s motion for summary judgment.
10 II. UNDISPUTED MATERIAL FACTS
11 A. THE PLEADINGS AND EXPOSURE CLAIM AGAINST COLUMBIA
12 On January 22, 2019 plaintiffs filed their complaint for damages. (Undisputed Material Fact
13 (“UMF”) No. 1.) Plaintiffs allege Columbia and other entities are liable for decedent’s purported
14 asbestos-related disease, and pursue a negligence claim against Columbia. (UMF No. 1.)
15 The Complaint fails to set forth any facts to form the basis of any claim against Columbia. (Id.)
16 Plaintiffs allege in the Complaint that Columbia is liable for decedents exposure to asbestos
17 while he was performing work as an insulator at the Lockheed facility for two days on June 19 and
18 20, 1967, on June 22, 1971 for work done at the Naval Supply Center in Oakland, for worked
19 performed at San Francisco General Hospital on February 22 and 23, 1973, March 2 thru 22, 1974,
20 April 16 thru 30, 1975, and April 8 to the 9, 1975, and finally on May 4, 1978 for work done at
21 Kaiser Hospital in South San Francisco. (UMF No. 2.)
22 B. COLUMBIA WAS NOT NAMED AS A DEFENDANT IN THE PERSONAL
INJURY COMPLAINT; THEREFORE A COLUMBIA REPRESENTATIVE
23 WAS NOT PRESENT AT DECEDENT’S DEPOSITIONS
24 On February 22, 2002 Decedent filed a Personal Injury Complaint in San Francisco County.
25 (UMF No. 3.) Columbia was not named as a defendant in the original complaint. (Id.) On April 4,
26 2004, Decedent filed an amended complaint adding additional defendants; again Columbia was not
27 named as a defendant. (UMF No. 4.) On April 22, 2004, Plaintiff filed another amended complaint
28 adding more defendants, again Columbia was not named. (UMF No. 5.) On August 11, 2004
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1 Decedent filed yet another amended complaint, adding even more defendants, again Columbia was
2 not named. (UMF No. 6.) Finally on September 3, 2004, Plaintiffs filed another amended complaint
3 adding an additional defendant, again Columbia was not named. (UMF No. 7.) Due to never being a
4 party in the Personal Injury action, Columbia did not appear at any of Decedent’s depositions. (UMF
5 No. 8.)
6 C. DECEDENT NEVER IDENTIFIED COLUMBIA IN ANY OF HIS
7 The Decedent was deposed over 14 days from 2003 to 2005; not once did Decedent identify
8 Columbia at his deposition. (UMF No. 9.) On June 2, 2003, Decedent was asked at his deposition if
9 he remembered the identity of any of the contractors at the Lockheed facility where he worked for
10 two days in June of 1967, he did not. (UMF No. 10.) On November 17, 2003, Decedent was asked
11 at his deposition if he remembered the identity of any of the contractors at the Oakland Naval Supply
12 Center where he worked for one day in June of 1971, he did not. (UMF No. 11.)
13 On November 18, 2003, Decedent was asked at his deposition if he remembered the identity
14 of any of the contractors at the San Francisco General Hospital when he worked there in February
15 1973, he did not. (UMF No. 12.) On October 12, 2004, Decedent was asked at his deposition if he
16 remembered the identity of any of the contractors at the San Francisco General Hospital when he
17 worked there in April, 1974, he did not. (UMF No. 13.) On the same day, Decedent was asked if he
18 remembered the identity of any of the contractors at the San Francisco General Hospital when he
19 worked there in 1975, he did not. (UMF No. 14.)
20 On October 13, 2004, Decedent was asked at his deposition if he remembered the identity of
21 any of the contractors at the Kaiser Hospital in South San Francisco when he worked there in 1978,
22 he did not. (UMF No. 15.)
23 D. PLAINTIFF’S STANDARD DISCOVERY RESPONSES DID NOT IDENTIFY
COLUMBIA AND CONTAIN NO FACTS THAT SUPPORT THE CLAIM
24 THAT COLUMBIA EXPOSED DECEDENT TO ASBESTOS
25 Plaintiff served Responses to Standard Interrogatories, on March 18, 2019 wherein they
26 claim that decedent was an insulator at numerous job sites (UMF No. 16.) However, Plaintiff’s did
27 not identify Columbia at any job sites over Decedents almost 40 year work history, including the job
28 sites that they initially identified Columbia at in the Complaint. (Id.)
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1 E. PLAINTIFF’S RESPONSES TO COLUMBIA’S DISCOVERY CONTAIN NO
FACTS TO SUPPORT THE CLAIM THAT COLUMBIA EXPOSED
2 DECEDENT TO ASBESTOS.
3 Columbia served comprehensive “state all facts” discovery on plaintiff Carol Chulick, which
4 requests she identify the facts, witnesses, and documents that support her claim Decedent was
5 exposed to asbestos from Columbia. (UMF No. 17). Plaintiff’s Responses to Columbia’s Special
6 Discovery contain allegations against Columbia, but no documents or witnesses to show that
7 Columbia actually exposed decedent to asbestos. Plaintiff’s Responses to Columbia’s Special
8 Discovery therefore confirm plaintiff does not possess and cannot reasonably obtain necessary
9 evidence to support their exposure claims against Columbia. (SUMF No. 18).
10 i. Facts:
11 In her Responses, plaintiff alleges that decedent was exposed to asbestos by Columbia.
12 However, as discussed above, they identify no specific job sites that Columbia allegedly exposed
13 Decedent. (UMF No. 16, 17, 18.) Additionally, the job sites in the Complaint where Plaintiff
14 identified Columbia, the Decedent could not identify any of the contractors at those sites. (UMF No.
15 1, 9-15.)
16 ii. Witnesses:
17 Plaintiff’s Responses identify the deposition of Decedent, however, as discussed above,
18 the Decedent never identified Columbia at his deposition. (UMF No. 9.)
19 Plaintiff’s Responses identify Decedent’s co worker Carl Ramsey deposition that was
20 taken in this matter on January 27, 2004. Mr. Ramsey also did not identify Columbia at
21 his deposition. (UMF No. 19.)
22 Plaintiffs identify future Plaintiff testimony, however Columbia anticipates that the
23 Plaintiff’s will be a non product identification witness, and will not identify Columbia, or
24 any other defendants.
25 iii. Documents:
26 In support of plaintiff’s contention that Columbia exposed decedent to asbestos, plaintiff
27 identifies the following documents: Decedent’s medical records, Social Security Records;
28 Decedent’s Deposition Transcripts; the Deposition of Carl Ramsey; (UMF No. 18.) These
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1 documents have no evidence that Columbia exposed decedent to asbestos, and confirms plaintiff
2 does not possess and cannot reasonably obtain necessary evidence to support their exposure claims
3 against Columbia.
4 III. LEGAL ANALYSIS
5 A. SUMMARY JUDGMENT IS WARRANTED WHEN PLAINTIFF’S CANNOT PROVE AN
ESSENTIAL ELEMENT OF THEIR CLAIM.
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7 A party may move for summary judgment in any action or proceeding if it is contended that
8 the action has no merit. Cal. Code Civil Proc. § 437c(a). A defendant may meet its burden of
9 showing that a cause of action has no merit by establishing that one or more elements of the cause of
10 action cannot be established, or that there is a complete defense to that cause of action. Id. at
11 § 437c(o)(2). A moving party is entitled to summary judgment “if all the moving papers submitted
12 show that there is no triable issue of material fact and that the moving party is entitled to judgment
13 as a matter of law.” (Code Civ. Proc. § 437c(c); see Chaknova v. Wilbur-Ellis Co. (1999) 69
14 Cal.App.4th 962, 974.)
15 A defendant makes a showing sufficient to shift its burden to the plaintiff when the defendant
16 shows that the “plaintiff does not possess, and cannot reasonably obtain, needed evidence…”
17 Aguilar. After the burden has shifted, the plaintiff must then present evidence showing there is a
18 triable issue of material fact as to the attacked element. See Cal. Code Civil Proc. § 437c subd.
19 (p)(2) and (Hunter v. Pacific Mechanical Corp. (1995) 37 Cal.App.4th 1282, 1285-1286
20 [disapproved on unrelated grounds in Aguilar at 854-855, fn 23].) Summary judgment is warranted
21 if no triable issue is established. (Code Civ. Proc. § 437c(o).)
22 The plaintiff “may not rely upon the mere allegations or denials of its pleadings to show that
23 a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a
24 triable issue of material fact exists as to that cause of action or a defense thereto.” Id. Plaintiff’s
25 evidence cannot be based on speculation or conjecture. Andrews v. Foster Wheeler LLC (2006) 138
26 Cal.App.4th 96, 102. Further, factually devoid discovery responses are prima facie evidence that
27 plaintiffs “‘[do] not possess and cannot reasonably obtain, needed evidence’ to support their claim.”
28 Id. at 106 (quoting Aguilar, 25 Cal.App.4th at 854).
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1 Summary judgment is proper in this case because Columbia has demonstrated Plaintiff’s
2 cannot make a threshold showing that decedent was exposed to asbestos from Columbia.
3 B. COLUMBIA HAS SHIFTED THE BURDEN OF PRODUCTION TO
PLAINTIFF
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5 The Chaknova and Hunter defendants relied on plaintiffs’ discovery responses to establish
6 the plaintiffs were personally aware of any facts that would establish the critical element of
7 causation. (Chaknova at 976; Hunter at 1289; see also McGonnell v. Kaiser Gypsum Co. (2002) 98
8 Cal.App.4th 1098, 1103-1104.) Like the Chaknova, Hunter, and McGonnell plaintiffs, plaintiff lacks
9 evidence decedent was exposed to asbestos from Columbia. Together, plaintiff’s responses to
10 written discovery and plaintiff’s testimony confirm plaintiff lacks necessary evidence. Columbia has
11 therefore shifted the burden of production to plaintiffs, who is now obligated to produce evidence
12 that supports their claim decedent was exposed to asbestos from Columbia. (Chaknova at 976;
13 Hunter at 1289.) Absent such a showing, the Court may presume plaintiff’s claim against Columbia
14 is not supported by evidence (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 593) and
15 should grant this motion for summary judgment to avoid a trial rendered useless by a directed verdict
16 (Aguilar at 855).
17 C. THE INTERESTS OF JUSTICE ARE NOT SERVED BY ADMITTING
DECEDENT’S DEPOSITION AGAINST COLUMBIA
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19 Code of Civil Procedure section 2025.620 (c)(2) lists a number of circumstances under which
20 a deposition may be used for any purpose if the Court determines the witness is “unavailable,”
21 including that the deponent is dead. (Code Civ. Proc. § 2025.620 (c)(2).) Section 2025.620 (c)(3)
22 contains a catch all provision that permits courts to admit depositions under “exceptional
23 circumstances” when using the deposition is “in the interests of justice.” (Code Civ. Proc.
24 § 2025.620 (c)(3).)
25 Although the Court may find decedent is ”unavailable” as defined by Code of Civil
26 Procedure section 2025.620, the Court should determine this is not an exceptional circumstance that
27 is supported by the interests of justice. In fact, the interests of justice are best served by refusing to
28 admit Decedents deposition against Columbia because the absence of any opportunity to cross
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1 examination by Columbia violates Columbia’s due process rights under the federal and state
2 Constitutions. (Anderson v. Superior Court (1989) 213 Cal.App.3d 1321, 1331, fn. 6.)
3 Columbia’s due process rights include the right to produce evidence and cross examine
4 witnesses. (Seering v. Department of Social Services (1987) 194 Cal. App.3d 298, 304; People v.
5 Abner (1962) 209 Cal.App.2d 484, 489.) Because Columbia was never named in the Personal Injury
6 matter, (through no fault of their own), Columbia had no “real opportunity of cross-examination.” Its
7 due process rights will be violated if the Court does not rule decedent’s deposition is inadmissible
8 against Columbia. (Stevenson v. Superior Court (1979) 91 Cal.App.3d 925, 930.)
9 D. PLAINTIFFS LACK ESSENTIAL CAUSATION EVIDENCE.
10 1. Plaintiffs Have Not Proven That Decedent Was Exposed To Any
Respirable Asbestos Fibers Due to the Activities of Columbia.
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12 California law requires “a sufficient factual nexus between the negligent conduct and the
13 injury.” (Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1414.) Plaintiffs cannot
14 establish this nexus, nor demonstrate causation, therefore their action against Columbia fails as a
15 matter of law.
16 “Causation’ is an essential element of a tort action. Defendants are not
liable unless their conduct … was a ‘legal cause’ of plaintiff’s injury.
17 Generally, the burden falls on the plaintiff to establish causation … In
the context of products liability actions, the plaintiff must prove that
18 the defective products supplied by the defendant were a substantial
factor in bringing about his or her injury.”
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20 (Whiteley v. Philip Morris Inc. (2004) 117 Cal.App.4th 635, 696 (citations omitted).)
21 To demonstrate causation in a case alleging latent injuries from asbestos, a plaintiff must
22 prove two facts: He “must first establish some threshold exposure to the defendant’s defective
23 asbestos-containing products…and [second, he] must further establish in reasonable medical
24 probability that a particular exposure or series of exposures was a ‘legal cause’ of his injury, i.e., a
25 substantial factor in bringing about the injury.” Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th
26 953, 975-976. See Lineaweaver v. Plant Insul’n Co. (1995) 31 Cal.App.4th 1409; McGonnell v.
27 Kaiser Gypsum Co. (2002) 98 Cal.App.4th 109, 1103. In Smith v. AC&S (1994) 31 Cal.App.4th 77,
28 the court stated it was not sufficient for plaintiffs to prove that defendant’s products were located
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1 somewhere in the facility; plaintiff must specifically prove that plaintiff was exposed to respirable
2 asbestos fibers from materials for which the defendant is responsible. See also Hunter v. Pacific
3 Mechanical Corp. (1995) 37 Cal.App.4th 1282.
4 The quality of evidence of exposure must be sufficient “to allow the trier of fact to find the
5 underlying fact in favor of the party opposing the motion for summary judgment.” Casey v. Perini
6 Corporation, (2012) 206 Cal.App.4th 1222, citing McGonnell, supra 98 Cal. App. 4th at p. 1105. In
7 Casey v. Perini Corporation, the First Appellate District upheld the lower courts’ granting of Perini
8 Corporation’s motion for summary judgment based on plaintiff’s inability to provide competent
9 evidence of exposure to plaintiff by Perini. Id. at 1240. The Court citing McGonnell found that
10 plaintiff’s evidence was speculative and failed to show any connection between the activities of
11 Perini and the plaintiff’s exposure to asbestos. Namely, the court found that plaintiff’s discovery
12 responses and deposition testimony lacked any evidence to support the claims that Perini exposed
13 plaintiff. Perini submitted comprehensive discovery requests asking for all facts that support
14 plaintiff’s claims against Perini. Id. at 1230-1231. Plaintiff’s responses contained general allegations
15 that Perini contractors disturbed asbestos-containing products in plaintiff’s presence which in turn
16 exposed plaintiff to asbestos. Id. at 1231. The court found that plaintiff’s answers were not enough
17 to support a claim and contained “little more than general allegations against Perini and did not state
18 specific facts showing that Casey was actually exposed to asbestos and/or asbestos-containing
19 products due to Perini’s activities.” Id. at 1231. The court further went on to state that plaintiff’s
20 deposition testimony was insufficient to support claims against Perini. Id. at 1230. Plaintiff testified
21 that he saw Perini workers performing work but admitted he did not know what materials contained
22 asbestos and which ones did not and could not recall the names of any products on the job site. Id. at
23 1230. The court also noted that plaintiffs failed to identify any fact witnesses who had knowledge of
24 the contents of the materials on plaintiff’s job sites. Id. at 1232. The court concluded that this case
25 was analogous to McGonnell, because “all that exists is speculation as to causation.” Id. at 1240.
26 In the instant matter, decedent’s deposition testimony is equally devoid of any competent
27 evidence, or any evidence at all, that Columbia exposed Decedent to asbestos. Likewise, plaintiff’s
28 responses to written discovery are insufficient to support claims against Columbia. They contain no
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1 facts or evidence that shows that Decedent was exposed to asbestos by Columbia. In their
2 Responses, plaintiffs allege that the decedent was exposed to asbestos as a result of Columbia’s
3 work; however plaintiffs have produced no document or witness to adequately support this claim.
4 Instead, as “evidence” of their allegation, plaintiffs identify the decedents and a co workers
5 deposition, neither of which ever identified Columbia.
6 In sum, plaintiffs have provided no evidence that Columbia exposed decedent to asbestos.
7 There is no document or witness, even taking all of Plaintiff’s evidence collectively, that can link
8 Columbia to using asbestos-containing products around the decedent. This confirms plaintiffs do not
9 possess and cannot reasonably obtain necessary evidence to support their exposure claims against
10 Columbia. As in Casey, plaintiffs have fabricated conclusory, vague, and overbroad statements in
11 discovery about Columbia’s work, in an attempt to prove Columbia exposed the decedent to
12 asbestos. These discovery responses are in no way proof of exposure.
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2. Plaintiffs Have Not Proven Decedent’s Alleged Injuries Were Caused By
14 Activities of Columbia at Any Location.
15 If there has been no exposure to a defendant’s product, then that product could not have
16 caused plaintiff’s injury. See Dumin v. Owens-Corning Fiberglas Corp. (1994) 28 Cal.App.4th 650,
17 655. In Dumin, the Court of Appeals upheld a directed verdict for defendant where the evidence
18 showed that defendant’s insulation products were present at a shipyard at the same time a ship--
19 which the plaintiff was aboard--was in the shipyard for repairs. The Appeals Court ruled that based
20 on the evidence in the record, the only way a jury could conclude that plaintiff had been exposed to
21 and harmed by defendant’s insulation “require[d] a stream of conjecture and surmise,” which was
22 impermissible. Id. at 657.
23 In Hunter v. Pacific Mechanical Corp. (1995) 37 Cal.App.4th 1282, the Appeals Court
24 followed Lineaweaver’s standard that a plaintiff must prove his exposure to defendant’s product was
25 a substantial factor in bringing about his injury. The Court of Appeals held that to impose liability
26 on a defendant, there must be a sufficient nexus between that defendant’s conduct and the plaintiff’s
27 injury. Id. at 1289. The Court ruled that plaintiff was required to show “evidence with respect to
28 time, locations, and actual circumstances of his exposure to [defendant’s] asbestos related activities,”
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1 Id. at 1290.
2 A defendant may demonstrate that a plaintiff cannot meet his or her burden of establishing
3 exposure to the defendant’s asbestos containing product by citing plaintiff’s deposition testimony, or
4 by citing discovery responses demonstrating that plaintiff is unable to put forth competent evidence
5 of exposure to the asbestos containing product. Where a defendant moving for summary judgment
6 demonstrates that the plaintiff’s deposition testimony or his responses to discovery merely create
7 speculation and conjecture regarding plaintiff’s exposure to the defendant’s asbestos containing
8 product, the burden shifts to the plaintiff to produce competent evidence upon which a jury could
9 reasonably infer actual exposure to the defendant’s product. McGonnell, 98 Cal.App.4th at 1103-
10 1105. A triable issue cannot be raised by cryptic, broadly phrased, conclusory statements, or mere
11 possibilities. Myricks v. Lynwood Unified School Dist. (1999) 74 Cal.App.4th 231, 237. An issue of
12 fact can only be created by evidence. It is not created by speculation, conjecture, imagination, or
13 guess work. Lee v. Crusader Ins. Co. (1996) 49 Cal.App.4th 1750, 1756. An opposing party cannot
14 avoid summary judgment by mere speculation and conjecture, but is required to produce admissible
15 evidence that raised a triable issue. Frank and Freedus v. Allstate Ins. Co. (1996) 45 Cal.App.4th
16 461, 468-469.
17 In the instant case, plaintiffs cannot establish that the decedent was exposed to asbestos from
18 any of Columbia’s activities or products at any location. No evidence has been provided by either
19 deposition testimony or discovery responses establishing that Columbia performed any activity that
20 exposed decedent to any asbestos containing material. Absent such evidence of causation,
21 Columbia’s motion for summary judgment should be granted on all counts alleged against it.
22 IV. CONCLUSION
23 Although a party may rely on reasonable inferences drawn from direct and circumstantial
24 evidence to satisfy its burden on summary judgment, Courts may not draw inferences from thin air.
25 (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 483; McGonnell at 1106.) Because
26 Mr. Chulick’s deposition is not admissible against Columbia, and he did not identify Columbia in his
27 deposition, there is no equally conflicting evidence or inferences with respect to plaintiffs’ action
28 against Columbia for the jury to resolve.
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AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
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1 Mr. Chulick’s testimony, Mr. Ramsey’s testimony, and decedent’s and plaintiffs’ discovery
2 responses do not permit a trier of fact to reasonably conclude Columbia is liable for decedent’s
3 injures. Therefore, the Court should grant Columbia’s motion for summary judgment.
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5 DATED: September 12, 2019 FOLEY & MANSFIELD, PLLP
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7 By:
Douglas G. Wah
8 Christine L. Hawkins
Hanna M. Thompson
9 Attorneys for Defendant
COLUMBIA MECHANICAL CONTRACTORS, INC.
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DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S MEMORANDUM OF POINTS AND
AUTHO
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1 Douglas G. Wah, Esq. SBN 64692 Christine L. Hawkins, Esq. SBN 233502 2 Hanna M. Thompson, Esq. SBN 291653 ELECTRONICALLY FOLEY & MANSFIELD, PLLP 3 2185 N. California Boulevard, Suite 575 F I L E D Superior Court of California, Walnut Creek, CA 94596 County of San Francisco 4 Telephone: (510) 590-9500 Facsimile: (510) 590-9595 09/12/2019 5 Email: hthompson@foleymansfield.com Clerk of the Court BY: YOLANDA TABO-RAMIREZ Deputy Clerk 6 Attorneys for Defendant 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 “Asbestos-Related Case” HAGEN and JOLEEN HAGLER, as Wrongful 13 Death Heirs of JOHN CHULICK, Deceased, DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S MEMORANDUM 14 Plaintiffs, OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY 15 vs. JUDGMENT 16 RILEY POWER INC., et al., Date: November 26, 2019 Time: 9:30 a.m. 17 Defendants. Dept.: 503 Judge: Hon. Cynthia Ming-mei Lee 18 Trial Date: December 2, 2019 19 Complaint Filed: January 22, 2019 20 21 22 23 24 25 26 27 28 DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 3541917 v3 1 TABLE OF CONTENTS 2 I. INTRODUCTION ............................................................................................................................. 1 3 II. UNDISPUTED MATERIAL FACTS ............................................................................................. 1 4 A. THE PLEADINGS AND EXPOSURE CLAIM AGAINS COLUMBIA ...................................... 1 5 B. COLUMBIA WAS NOT NAMED AS A DEFENDANT IN THE PERSONAL INJURY 6 COMPLAINT; THEREFORE A COLUMBIA REPRESENTATIVE WAS NOT PRESENT AT 7 DECEDENT’S DEPOSITIONS ..................................................................................................... 1 8 C. DECEDENT NEVER IDENTIFIED COLUMBIA IN ANY OF HIS ................................... ……..2 9 D. PLAINTIFF’S STANDARD DISCOVERY RESPONSES DID NOT IDENTIFY COLUMBIA AND CONTAIN NO FACTS THAT SUPPORT THE CLAIM THAT 10 COLUMBIA EXPOSED DECEDENT TO ASBESTOS ............................................................... 2 11 E. PLAINTIFF’S RESPONSES TO COLUMBIA’S DISCOVERY CONTAIN NO FACTS TO 12 SUPPORT THE CLAIM THAT COLUMBIA EXPOSED DECEDENT TO ASBESTOS .......... 3 13 i. Facts ............................................................................................................................................. 3 14 ii. Witnesses ..................................................................................................................................... 3 15 iii. Documents ................................................................................................................................... 3 16 III. LEGAL ANALYSIS ...................................................................................................................... 4 17 18 A. SUMMARY JUDGMENT IS WARRANTED WHEN PLAINTIFF’S CANNOT PROVE AN ESSENTIAL ELEMENT OF THEIR CLAIM. .................................................................................... 4 19 B. COLUMBIA HAS SHIFTED THE BURDEN OF PRODUCTION TO PLAINTIFF ................ 5 20 C. THE INTERESTS OF JUSTICE ARE NOT SERVED BY ADMITTING DECEDENT’S 21 DEPOSITION AGAINST COLUMBIA ....................................................................................... 5 22 D. PLAINTIFFS LACK ESSENTIAL CAUSATION EVIDENCE. .................................................. 6 23 1. Plaintiffs Have Not Proven That Decedent Was Exposed To Any Respirable Asbestos Fibers 24 Due to the Activities of Columbia. ........................................................................................... 6 25 2. Plaintiffs Have Not Proven Decedent’s Alleged Injuries Were Caused By Activities of 26 Columbia at Any Location. ....................................................................................................... 8 27 IV. CONCLUSION.............................................................................................................................. 9 28 i DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 3541917 v3 1 TABLE OF AUTHORITIES 2 CASES 3 4 Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 102 .................................................... 4, 5 5 Anderson v. Superior Court (1989) 213 Cal.App.3d 1321, 1331 ......................................................... 6 6 Casey v. Perini Corporation, (2012) 206 Cal.App.4th 1222 ................................................................. 7 7 Casey v. Perini Corporation, the First Appellate District .................................................................... 7 8 Chaknova v. Wilbur-Ellis Co. (1999) 69 Cal.App.4th 962, 974.)...................................................... 4, 5 9 Dumin v. Owens-Corning Fiberglass Corp. (1994) 28 Cal.App.4th 650 .............................................. 8 10 Frank and Freedus v. Allstate Ins. Co. (1996) 45 Cal.App.4th 461, 468-46......................................... 9 11 Hunter v. Pacific Mechanical Corp. (1995) 37 Cal.App.4th 1282, 1285-1286 ....................... 4, 5, 7, 8 12 Lee v. Crusader Ins. Co. (1996) 49 Cal.App.4th 1750, 1756 ................................................................ 9 13 Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 483 ......................................................... 9 14 Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1414 ............................................. 6 15 McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098, 1103-1104.) ................................. 7, 9 16 Myricks v. Lynwood Unified School Dist. (1999) 74 Cal.App.4th 231, 237 ......................................... 9 17 People v. Abner (1962) 209 Cal.App.2d 484, 489 ................................................................................ 6 18 Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 975-976 ...................................................... 6 19 Seering v. Department of Social Services (1987) 194 Cal. App.3d 298, 304 ....................................... 6 20 Smith vs. AC&S (1994) 31 Cal.App.4th 77 ............................................................................................ 6 21 Stevenson v. Superior Court (1979) 91 Cal.App.3d 925, 930 .............................................................. 6 22 Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 593 ........................................................... 5 23 Whiteley v. Philip Morris Inc. (2004) 117 Cal.App.4th 635, 696.......................................................... 6 24 STATUTES 25 (Code Civ. Proc. § 437c(c) ................................................................................................................... 4 26 (Code Civ. Proc. § 437c(o) ................................................................................................................... 4 27 § 437c(o)(2) .......................................................................................................................................... 4 28 ii DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 3541917 v3 1 STATUTES (cont.) 2 Cal. Code Civil Proc. § 437c subd. (p)(2)............................................................................................. 4 3 Cal. Code Civil Proc. § 437c(a) ............................................................................................................ 4 4 Code Civ. Proc. § 2025.620 (c)(3) ........................................................................................................ 5 5 Code Civ. Proc. § 2025.620 (c)(2) ........................................................................................................ 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iii DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 3541917 v3 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 Columbia was 6 not a party to the personal injury action when the parties deposed Decedent in 2003, 2004 and 2005. 7 Additionally, there was no identification of Columbia at Decedent and decedents co worker Mr. Carl 8 Ramsey depositions. Because the facts demonstrate plaintiff does not posses and cannot reasonably 9 obtain necessary evidence, the Court should grant Columbia’s motion for summary judgment. 10 II. UNDISPUTED MATERIAL FACTS 11 A. THE PLEADINGS AND EXPOSURE CLAIM AGAINST COLUMBIA 12 On January 22, 2019 plaintiffs filed their complaint for damages. (Undisputed Material Fact 13 (“UMF”) No. 1.) Plaintiffs allege Columbia and other entities are liable for decedent’s purported 14 asbestos-related disease, and pursue a negligence claim against Columbia. (UMF No. 1.) 15 The Complaint fails to set forth any facts to form the basis of any claim against Columbia. (Id.) 16 Plaintiffs allege in the Complaint that Columbia is liable for decedents exposure to asbestos 17 while he was performing work as an insulator at the Lockheed facility for two days on June 19 and 18 20, 1967, on June 22, 1971 for work done at the Naval Supply Center in Oakland, for worked 19 performed at San Francisco General Hospital on February 22 and 23, 1973, March 2 thru 22, 1974, 20 April 16 thru 30, 1975, and April 8 to the 9, 1975, and finally on May 4, 1978 for work done at 21 Kaiser Hospital in South San Francisco. (UMF No. 2.) 22 B. COLUMBIA WAS NOT NAMED AS A DEFENDANT IN THE PERSONAL INJURY COMPLAINT; THEREFORE A COLUMBIA REPRESENTATIVE 23 WAS NOT PRESENT AT DECEDENT’S DEPOSITIONS 24 On February 22, 2002 Decedent filed a Personal Injury Complaint in San Francisco County. 25 (UMF No. 3.) Columbia was not named as a defendant in the original complaint. (Id.) On April 4, 26 2004, Decedent filed an amended complaint adding additional defendants; again Columbia was not 27 named as a defendant. (UMF No. 4.) On April 22, 2004, Plaintiff filed another amended complaint 28 adding more defendants, again Columbia was not named. (UMF No. 5.) On August 11, 2004 1 DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 3541917 v3 1 Decedent filed yet another amended complaint, adding even more defendants, again Columbia was 2 not named. (UMF No. 6.) Finally on September 3, 2004, Plaintiffs filed another amended complaint 3 adding an additional defendant, again Columbia was not named. (UMF No. 7.) Due to never being a 4 party in the Personal Injury action, Columbia did not appear at any of Decedent’s depositions. (UMF 5 No. 8.) 6 C. DECEDENT NEVER IDENTIFIED COLUMBIA IN ANY OF HIS 7 The Decedent was deposed over 14 days from 2003 to 2005; not once did Decedent identify 8 Columbia at his deposition. (UMF No. 9.) On June 2, 2003, Decedent was asked at his deposition if 9 he remembered the identity of any of the contractors at the Lockheed facility where he worked for 10 two days in June of 1967, he did not. (UMF No. 10.) On November 17, 2003, Decedent was asked 11 at his deposition if he remembered the identity of any of the contractors at the Oakland Naval Supply 12 Center where he worked for one day in June of 1971, he did not. (UMF No. 11.) 13 On November 18, 2003, Decedent was asked at his deposition if he remembered the identity 14 of any of the contractors at the San Francisco General Hospital when he worked there in February 15 1973, he did not. (UMF No. 12.) On October 12, 2004, Decedent was asked at his deposition if he 16 remembered the identity of any of the contractors at the San Francisco General Hospital when he 17 worked there in April, 1974, he did not. (UMF No. 13.) On the same day, Decedent was asked if he 18 remembered the identity of any of the contractors at the San Francisco General Hospital when he 19 worked there in 1975, he did not. (UMF No. 14.) 20 On October 13, 2004, Decedent was asked at his deposition if he remembered the identity of 21 any of the contractors at the Kaiser Hospital in South San Francisco when he worked there in 1978, 22 he did not. (UMF No. 15.) 23 D. PLAINTIFF’S STANDARD DISCOVERY RESPONSES DID NOT IDENTIFY COLUMBIA AND CONTAIN NO FACTS THAT SUPPORT THE CLAIM 24 THAT COLUMBIA EXPOSED DECEDENT TO ASBESTOS 25 Plaintiff served Responses to Standard Interrogatories, on March 18, 2019 wherein they 26 claim that decedent was an insulator at numerous job sites (UMF No. 16.) However, Plaintiff’s did 27 not identify Columbia at any job sites over Decedents almost 40 year work history, including the job 28 sites that they initially identified Columbia at in the Complaint. (Id.) 2 DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 3541917 v3 1 E. PLAINTIFF’S RESPONSES TO COLUMBIA’S DISCOVERY CONTAIN NO FACTS TO SUPPORT THE CLAIM THAT COLUMBIA EXPOSED 2 DECEDENT TO ASBESTOS. 3 Columbia served comprehensive “state all facts” discovery on plaintiff Carol Chulick, which 4 requests she identify the facts, witnesses, and documents that support her claim Decedent was 5 exposed to asbestos from Columbia. (UMF No. 17). Plaintiff’s Responses to Columbia’s Special 6 Discovery contain allegations against Columbia, but no documents or witnesses to show that 7 Columbia actually exposed decedent to asbestos. Plaintiff’s Responses to Columbia’s Special 8 Discovery therefore confirm plaintiff does not possess and cannot reasonably obtain necessary 9 evidence to support their exposure claims against Columbia. (SUMF No. 18). 10 i. Facts: 11 In her Responses, plaintiff alleges that decedent was exposed to asbestos by Columbia. 12 However, as discussed above, they identify no specific job sites that Columbia allegedly exposed 13 Decedent. (UMF No. 16, 17, 18.) Additionally, the job sites in the Complaint where Plaintiff 14 identified Columbia, the Decedent could not identify any of the contractors at those sites. (UMF No. 15 1, 9-15.) 16 ii. Witnesses: 17 Plaintiff’s Responses identify the deposition of Decedent, however, as discussed above, 18 the Decedent never identified Columbia at his deposition. (UMF No. 9.) 19 Plaintiff’s Responses identify Decedent’s co worker Carl Ramsey deposition that was 20 taken in this matter on January 27, 2004. Mr. Ramsey also did not identify Columbia at 21 his deposition. (UMF No. 19.) 22 Plaintiffs identify future Plaintiff testimony, however Columbia anticipates that the 23 Plaintiff’s will be a non product identification witness, and will not identify Columbia, or 24 any other defendants. 25 iii. Documents: 26 In support of plaintiff’s contention that Columbia exposed decedent to asbestos, plaintiff 27 identifies the following documents: Decedent’s medical records, Social Security Records; 28 Decedent’s Deposition Transcripts; the Deposition of Carl Ramsey; (UMF No. 18.) These 3 DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 3541917 v3 1 documents have no evidence that Columbia exposed decedent to asbestos, and confirms plaintiff 2 does not possess and cannot reasonably obtain necessary evidence to support their exposure claims 3 against Columbia. 4 III. LEGAL ANALYSIS 5 A. SUMMARY JUDGMENT IS WARRANTED WHEN PLAINTIFF’S CANNOT PROVE AN ESSENTIAL ELEMENT OF THEIR CLAIM. 6 7 A party may move for summary judgment in any action or proceeding if it is contended that 8 the action has no merit. Cal. Code Civil Proc. § 437c(a). A defendant may meet its burden of 9 showing that a cause of action has no merit by establishing that one or more elements of the cause of 10 action cannot be established, or that there is a complete defense to that cause of action. Id. at 11 § 437c(o)(2). A moving party is entitled to summary judgment “if all the moving papers submitted 12 show that there is no triable issue of material fact and that the moving party is entitled to judgment 13 as a matter of law.” (Code Civ. Proc. § 437c(c); see Chaknova v. Wilbur-Ellis Co. (1999) 69 14 Cal.App.4th 962, 974.) 15 A defendant makes a showing sufficient to shift its burden to the plaintiff when the defendant 16 shows that the “plaintiff does not possess, and cannot reasonably obtain, needed evidence…” 17 Aguilar. After the burden has shifted, the plaintiff must then present evidence showing there is a 18 triable issue of material fact as to the attacked element. See Cal. Code Civil Proc. § 437c subd. 19 (p)(2) and (Hunter v. Pacific Mechanical Corp. (1995) 37 Cal.App.4th 1282, 1285-1286 20 [disapproved on unrelated grounds in Aguilar at 854-855, fn 23].) Summary judgment is warranted 21 if no triable issue is established. (Code Civ. Proc. § 437c(o).) 22 The plaintiff “may not rely upon the mere allegations or denials of its pleadings to show that 23 a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a 24 triable issue of material fact exists as to that cause of action or a defense thereto.” Id. Plaintiff’s 25 evidence cannot be based on speculation or conjecture. Andrews v. Foster Wheeler LLC (2006) 138 26 Cal.App.4th 96, 102. Further, factually devoid discovery responses are prima facie evidence that 27 plaintiffs “‘[do] not possess and cannot reasonably obtain, needed evidence’ to support their claim.” 28 Id. at 106 (quoting Aguilar, 25 Cal.App.4th at 854). 4 DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 3541917 v3 1 Summary judgment is proper in this case because Columbia has demonstrated Plaintiff’s 2 cannot make a threshold showing that decedent was exposed to asbestos from Columbia. 3 B. COLUMBIA HAS SHIFTED THE BURDEN OF PRODUCTION TO PLAINTIFF 4 5 The Chaknova and Hunter defendants relied on plaintiffs’ discovery responses to establish 6 the plaintiffs were personally aware of any facts that would establish the critical element of 7 causation. (Chaknova at 976; Hunter at 1289; see also McGonnell v. Kaiser Gypsum Co. (2002) 98 8 Cal.App.4th 1098, 1103-1104.) Like the Chaknova, Hunter, and McGonnell plaintiffs, plaintiff lacks 9 evidence decedent was exposed to asbestos from Columbia. Together, plaintiff’s responses to 10 written discovery and plaintiff’s testimony confirm plaintiff lacks necessary evidence. Columbia has 11 therefore shifted the burden of production to plaintiffs, who is now obligated to produce evidence 12 that supports their claim decedent was exposed to asbestos from Columbia. (Chaknova at 976; 13 Hunter at 1289.) Absent such a showing, the Court may presume plaintiff’s claim against Columbia 14 is not supported by evidence (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 593) and 15 should grant this motion for summary judgment to avoid a trial rendered useless by a directed verdict 16 (Aguilar at 855). 17 C. THE INTERESTS OF JUSTICE ARE NOT SERVED BY ADMITTING DECEDENT’S DEPOSITION AGAINST COLUMBIA 18 19 Code of Civil Procedure section 2025.620 (c)(2) lists a number of circumstances under which 20 a deposition may be used for any purpose if the Court determines the witness is “unavailable,” 21 including that the deponent is dead. (Code Civ. Proc. § 2025.620 (c)(2).) Section 2025.620 (c)(3) 22 contains a catch all provision that permits courts to admit depositions under “exceptional 23 circumstances” when using the deposition is “in the interests of justice.” (Code Civ. Proc. 24 § 2025.620 (c)(3).) 25 Although the Court may find decedent is ”unavailable” as defined by Code of Civil 26 Procedure section 2025.620, the Court should determine this is not an exceptional circumstance that 27 is supported by the interests of justice. In fact, the interests of justice are best served by refusing to 28 admit Decedents deposition against Columbia because the absence of any opportunity to cross 5 DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 3541917 v3 1 examination by Columbia violates Columbia’s due process rights under the federal and state 2 Constitutions. (Anderson v. Superior Court (1989) 213 Cal.App.3d 1321, 1331, fn. 6.) 3 Columbia’s due process rights include the right to produce evidence and cross examine 4 witnesses. (Seering v. Department of Social Services (1987) 194 Cal. App.3d 298, 304; People v. 5 Abner (1962) 209 Cal.App.2d 484, 489.) Because Columbia was never named in the Personal Injury 6 matter, (through no fault of their own), Columbia had no “real opportunity of cross-examination.” Its 7 due process rights will be violated if the Court does not rule decedent’s deposition is inadmissible 8 against Columbia. (Stevenson v. Superior Court (1979) 91 Cal.App.3d 925, 930.) 9 D. PLAINTIFFS LACK ESSENTIAL CAUSATION EVIDENCE. 10 1. Plaintiffs Have Not Proven That Decedent Was Exposed To Any Respirable Asbestos Fibers Due to the Activities of Columbia. 11 12 California law requires “a sufficient factual nexus between the negligent conduct and the 13 injury.” (Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1414.) Plaintiffs cannot 14 establish this nexus, nor demonstrate causation, therefore their action against Columbia fails as a 15 matter of law. 16 “Causation’ is an essential element of a tort action. Defendants are not liable unless their conduct … was a ‘legal cause’ of plaintiff’s injury. 17 Generally, the burden falls on the plaintiff to establish causation … In the context of products liability actions, the plaintiff must prove that 18 the defective products supplied by the defendant were a substantial factor in bringing about his or her injury.” 19 20 (Whiteley v. Philip Morris Inc. (2004) 117 Cal.App.4th 635, 696 (citations omitted).) 21 To demonstrate causation in a case alleging latent injuries from asbestos, a plaintiff must 22 prove two facts: He “must first establish some threshold exposure to the defendant’s defective 23 asbestos-containing products…and [second, he] must further establish in reasonable medical 24 probability that a particular exposure or series of exposures was a ‘legal cause’ of his injury, i.e., a 25 substantial factor in bringing about the injury.” Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 26 953, 975-976. See Lineaweaver v. Plant Insul’n Co. (1995) 31 Cal.App.4th 1409; McGonnell v. 27 Kaiser Gypsum Co. (2002) 98 Cal.App.4th 109, 1103. In Smith v. AC&S (1994) 31 Cal.App.4th 77, 28 the court stated it was not sufficient for plaintiffs to prove that defendant’s products were located 6 DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 3541917 v3 1 somewhere in the facility; plaintiff must specifically prove that plaintiff was exposed to respirable 2 asbestos fibers from materials for which the defendant is responsible. See also Hunter v. Pacific 3 Mechanical Corp. (1995) 37 Cal.App.4th 1282. 4 The quality of evidence of exposure must be sufficient “to allow the trier of fact to find the 5 underlying fact in favor of the party opposing the motion for summary judgment.” Casey v. Perini 6 Corporation, (2012) 206 Cal.App.4th 1222, citing McGonnell, supra 98 Cal. App. 4th at p. 1105. In 7 Casey v. Perini Corporation, the First Appellate District upheld the lower courts’ granting of Perini 8 Corporation’s motion for summary judgment based on plaintiff’s inability to provide competent 9 evidence of exposure to plaintiff by Perini. Id. at 1240. The Court citing McGonnell found that 10 plaintiff’s evidence was speculative and failed to show any connection between the activities of 11 Perini and the plaintiff’s exposure to asbestos. Namely, the court found that plaintiff’s discovery 12 responses and deposition testimony lacked any evidence to support the claims that Perini exposed 13 plaintiff. Perini submitted comprehensive discovery requests asking for all facts that support 14 plaintiff’s claims against Perini. Id. at 1230-1231. Plaintiff’s responses contained general allegations 15 that Perini contractors disturbed asbestos-containing products in plaintiff’s presence which in turn 16 exposed plaintiff to asbestos. Id. at 1231. The court found that plaintiff’s answers were not enough 17 to support a claim and contained “little more than general allegations against Perini and did not state 18 specific facts showing that Casey was actually exposed to asbestos and/or asbestos-containing 19 products due to Perini’s activities.” Id. at 1231. The court further went on to state that plaintiff’s 20 deposition testimony was insufficient to support claims against Perini. Id. at 1230. Plaintiff testified 21 that he saw Perini workers performing work but admitted he did not know what materials contained 22 asbestos and which ones did not and could not recall the names of any products on the job site. Id. at 23 1230. The court also noted that plaintiffs failed to identify any fact witnesses who had knowledge of 24 the contents of the materials on plaintiff’s job sites. Id. at 1232. The court concluded that this case 25 was analogous to McGonnell, because “all that exists is speculation as to causation.” Id. at 1240. 26 In the instant matter, decedent’s deposition testimony is equally devoid of any competent 27 evidence, or any evidence at all, that Columbia exposed Decedent to asbestos. Likewise, plaintiff’s 28 responses to written discovery are insufficient to support claims against Columbia. They contain no 7 DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 3541917 v3 1 facts or evidence that shows that Decedent was exposed to asbestos by Columbia. In their 2 Responses, plaintiffs allege that the decedent was exposed to asbestos as a result of Columbia’s 3 work; however plaintiffs have produced no document or witness to adequately support this claim. 4 Instead, as “evidence” of their allegation, plaintiffs identify the decedents and a co workers 5 deposition, neither of which ever identified Columbia. 6 In sum, plaintiffs have provided no evidence that Columbia exposed decedent to asbestos. 7 There is no document or witness, even taking all of Plaintiff’s evidence collectively, that can link 8 Columbia to using asbestos-containing products around the decedent. This confirms plaintiffs do not 9 possess and cannot reasonably obtain necessary evidence to support their exposure claims against 10 Columbia. As in Casey, plaintiffs have fabricated conclusory, vague, and overbroad statements in 11 discovery about Columbia’s work, in an attempt to prove Columbia exposed the decedent to 12 asbestos. These discovery responses are in no way proof of exposure. 13 2. Plaintiffs Have Not Proven Decedent’s Alleged Injuries Were Caused By 14 Activities of Columbia at Any Location. 15 If there has been no exposure to a defendant’s product, then that product could not have 16 caused plaintiff’s injury. See Dumin v. Owens-Corning Fiberglas Corp. (1994) 28 Cal.App.4th 650, 17 655. In Dumin, the Court of Appeals upheld a directed verdict for defendant where the evidence 18 showed that defendant’s insulation products were present at a shipyard at the same time a ship-- 19 which the plaintiff was aboard--was in the shipyard for repairs. The Appeals Court ruled that based 20 on the evidence in the record, the only way a jury could conclude that plaintiff had been exposed to 21 and harmed by defendant’s insulation “require[d] a stream of conjecture and surmise,” which was 22 impermissible. Id. at 657. 23 In Hunter v. Pacific Mechanical Corp. (1995) 37 Cal.App.4th 1282, the Appeals Court 24 followed Lineaweaver’s standard that a plaintiff must prove his exposure to defendant’s product was 25 a substantial factor in bringing about his injury. The Court of Appeals held that to impose liability 26 on a defendant, there must be a sufficient nexus between that defendant’s conduct and the plaintiff’s 27 injury. Id. at 1289. The Court ruled that plaintiff was required to show “evidence with respect to 28 time, locations, and actual circumstances of his exposure to [defendant’s] asbestos related activities,” 8 DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 3541917 v3 1 Id. at 1290. 2 A defendant may demonstrate that a plaintiff cannot meet his or her burden of establishing 3 exposure to the defendant’s asbestos containing product by citing plaintiff’s deposition testimony, or 4 by citing discovery responses demonstrating that plaintiff is unable to put forth competent evidence 5 of exposure to the asbestos containing product. Where a defendant moving for summary judgment 6 demonstrates that the plaintiff’s deposition testimony or his responses to discovery merely create 7 speculation and conjecture regarding plaintiff’s exposure to the defendant’s asbestos containing 8 product, the burden shifts to the plaintiff to produce competent evidence upon which a jury could 9 reasonably infer actual exposure to the defendant’s product. McGonnell, 98 Cal.App.4th at 1103- 10 1105. A triable issue cannot be raised by cryptic, broadly phrased, conclusory statements, or mere 11 possibilities. Myricks v. Lynwood Unified School Dist. (1999) 74 Cal.App.4th 231, 237. An issue of 12 fact can only be created by evidence. It is not created by speculation, conjecture, imagination, or 13 guess work. Lee v. Crusader Ins. Co. (1996) 49 Cal.App.4th 1750, 1756. An opposing party cannot 14 avoid summary judgment by mere speculation and conjecture, but is required to produce admissible 15 evidence that raised a triable issue. Frank and Freedus v. Allstate Ins. Co. (1996) 45 Cal.App.4th 16 461, 468-469. 17 In the instant case, plaintiffs cannot establish that the decedent was exposed to asbestos from 18 any of Columbia’s activities or products at any location. No evidence has been provided by either 19 deposition testimony or discovery responses establishing that Columbia performed any activity that 20 exposed decedent to any asbestos containing material. Absent such evidence of causation, 21 Columbia’s motion for summary judgment should be granted on all counts alleged against it. 22 IV. CONCLUSION 23 Although a party may rely on reasonable inferences drawn from direct and circumstantial 24 evidence to satisfy its burden on summary judgment, Courts may not draw inferences from thin air. 25 (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 483; McGonnell at 1106.) Because 26 Mr. Chulick’s deposition is not admissible against Columbia, and he did not identify Columbia in his 27 deposition, there is no equally conflicting evidence or inferences with respect to plaintiffs’ action 28 against Columbia for the jury to resolve. 9 DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 3541917 v3 1 Mr. Chulick’s testimony, Mr. Ramsey’s testimony, and decedent’s and plaintiffs’ discovery 2 responses do not permit a trier of fact to reasonably conclude Columbia is liable for decedent’s 3 injures. Therefore, the Court should grant Columbia’s motion for summary judgment. 4 5 DATED: September 12, 2019 FOLEY & MANSFIELD, PLLP 6 7 By: Douglas G. Wah 8 Christine L. Hawkins Hanna M. Thompson 9 Attorneys for Defendant COLUMBIA MECHANICAL CONTRACTORS, INC. 10 11 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 AUTHO