Judgment: NANCY MARIE SCOTT et al VS. AC AND S, INC. et al

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FRANK D. POND (BAR NO. 126191)
ANN I. PARK(BAR NO. 130394}
KEVIN D. JAMISGN{BAR NO. 222105).
POND NORTH LLP

350 South Grand Avenue, Suite 2850

Los Angeles, CA 90071

Telephone: (213) 617-6170

Facsimile: (213) 623-3594

Attorneys for Defendant

CBS CORPORATION, a Delaware
corporation, f/k/a Viacom Inc., successor by
merger to CBS Corporation, a Pennsylvania

| corporation, f/k/a Westinghouse Electric

Corporation

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO

NANCY MARIE SCOTT, Individually and as

Successor-in-Interest to DENZIL SCOTT,
Decedent; JOANNE MARIE WOLFARTH;
MICHAEL GERALD SCOTT; ROBERT
DAVID SCOTT; THOMAS CARY SCOTT;

MARY DENISE SOBOLIK; and FIRST DOE

mrough TENTH DOE, inclusive,
Plaintiff,
VS.

AC AND 8, INC., et al.,

_ Defendant.

For the convenience of the Court, Defendant CBS CORPORATION, a Delaware
corporation, (7k/a Viacom Inc., successor by merger to CBS Corporation, a Pennsylvania
carporation, f/k/a Westinghouse Electric Corporation (“Westinghouse” or “Defendant”) submils
the following Consolidated Scparate Statement of Undisputed Material Facts in Support of its
Motion fer Summary Judgment, or, in the Alternative, for Summary Adjudication. This
consolidated separate statement contains verbatim Westinghouse’s Separate Statement of

_ CONSCLIDATED SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF
DEFENDANT CBS CORPORATION'S MOTION FOR SUMMARY JUDGMENT

4520- 1265: 254691.1

OR, IN THE ALTERNATIVE, FOR

Judge: Hon. Patrick Mahoney
Department: 302 -

Date:. June 15, 2007 .

Time: 9:36 a.m..

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

JUN 12 2007
GORDON PARK-LI, Clerk
BY: LUCIA RAMOS
Deputy Clefk

Case Ne: CGC-05-443236

CONSOLIDATED SEPARATE
STATEMENT OF UNDISPUTED
MATERIAL FACTS IN SUPPORT OF .
DEFENDANT CBS CORPORATION'S
MOTION FOR SUMMARY JUDGMENT,

SUMMARY ADJU DICATION (PART 1 OF

Case Filed: July 20, 2005
Trial Date: July 16, 2007Undisputed Material Facts, plaintiffs’ responses to each fact, and Westinghouse’s reply thereto.
These facts, established by plaintiffs’ complaint, discovery responses, and deposition testimony
are conceded as undisputed only for purposes of this Motion. By this Motion, CBS does not
waive, and hereby reserves the right to dispute any of these facts at trial.
FIRST CAUSE OF ACTION
(Negligence)

Issue 1: Plaintiffs’ First Cause of Action for Negligence fails as a maticr of law because
Plaintiffs have failed to establish a triable issue of fact as to causation, ic. (A) Plaintifis have
failed to identify any asbestos-containing product manufactured, sold, distributed or supplied by
Westinghouse to which Decedent Denzel Scott was exposed; and (B) even if Plaintiffs could
establish exposure, Plaintiffs have no evidence that such exposure was a substantial factor

contributing to Decedent’s illness,

DEFENDANT’S UNDISPUTED PLAINTIFFS’ RESPONSE AND
MATERIAL FACT AND SUPPORTING SUPPORTING EVIDENCE
EVIDENCE

1. Plaintiff have filed a Complaint 1. Disputed. Plaintiff's complaint
against Westinghouse asserting causes of speaks for itself. Plaintiffs’ complaint
action for negligence, strict liability, specifically alleges that Mr. Scott's work
enterprise liability, false representation, with Defendant’s asbestos containing
survival, loss of consortium and punitive products exposed Mr. Scott to asbestos and

damages against Westinghouse for ultimately caused his asbestos-related disease
Decedent’s death, which was allegedly and death.

caused by exposure to asbestos-containing
products.

Supporting Evidence: Plaintifs
Complaint for Wrongftl Death (asbestos)
filed July 20, 2005, attached hereto as
Exhibit A to the Declaration of Kevin D.
Jamison (“Jamison Decl.”).

Plaintiffs’ Complaint

DEFENDANT’S REPLY
Plaintiffs’ Complaint does not make any “specific” allegations against Westinghouse, or
any other defendant, Rather, all of plaintiffs’ allegations are extremely general in nature and do
not identify any specific products to which decedent was allegedly exposed. See Plaintiffs”

Complaint $f 6, 14, 17-18, 23.
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CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF
DEFENDANT CBS CORPORATION'S MOTION FOR SUMMARY JUDGMENT
4520-1265.254691.1UL

DEFENDANT’S UNDISPUTED
MATERIAL FACT AND SUPPORT!

PLAINTIFFS’ RESPONSE AND
SUPPORTING EVIDENCE

EVIDENCE

2. Plaintiff allege that Deccdent was
exposed to asbestos'attendant to his work as
a gunner’s mate while scrving in the U.S.
Navy from 1940 (rough 1960, as well as,
from his work as an instrument mechanic at
various shipyards in the Northern
California area from 1960 through 1985.

Supporting Evidence: Standard
Interrogatories propounded by Defendants

(‘Wrongful Death), Set One, attached hereto
as Exhibit B to the Jamison Dec!.;
Plaintiffs” Answers to Standard
Interrogatories propounded by Defendants
(Wrongful Death), Set One, dated February
24, 2004, at 11:6-12:24, attached hereto as
Exhibit C to Jamison Decl.

2. Disputed. Plaintifis* complaint
speaks for itself. Plaintiffs’ allegations in
theix complaint detail Mr. Scott’s work as an
clectrician at multiple locations, cluding at.
Hunter’s Point Naval Shipyard (“HPNSY")
where he worked with Westinghouse
asbestos-containiag products. Frank
Vassallo and Vincent Celia, Mr. Scotts co~
workers at HPNSY from the 1960s and early
1970s, remember seeing Mr. Scott working
with and in the presence of other trades that
worked with Defendant's asbestos-
containing products. Mr. Vassallo recalls
that Mr. Scott’s work to Westinghouse
motors, turbines and associated electrical
equipment caused dust from the stripping of
multiple heat wire and high temperature wire.
He recalls Westinghouse equipment that was
insulated and that insulation was disturbed
during Mr. Scott’s work on it. He
remembers that trades removed gaskets and
seals from Westinghouse equipment that
appeared to be fibrous in nature. The dust
from this work was breathed by all around it
including Mr. Scott. He states that the
Westinghouse name and logo was on the
equipment identifying it as such and there
were manuals that also identified
Westinghouse. Mr. Celia recalls that Mr.
Scott worked with Bakelite phenolic molding
‘compounds and insulating boards, drilling,
cutting and filing them at times during
installation and replacement which invariably
caused dust to be generated. He remembers
that Bakelite was associated with motors,
motor controls, switches, terminal boards,
power panels and switch gear madc by
‘Westinghouse, which Mr. Scott worked on
and changed out during his tenure at
‘Hunter’s Point Naval Shipyard as an
electrician. Mr, Scott’s supervisor, William
Chesson, recalls Mr. Scott’s work as an
apprentice electrician at HPNSY in the carly
1960s. He recalls Mr. Scott working with
Westinghouse switch gear, motors, control
panels, controllers and power panels, This
work included repair to damaged internal
Bakelite phenolic molding materials
contained within the Westinghouse
equipment. He remembers that Mr. Scott’s

3

CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF
DEFENDANT CBS CORPORATION'S MOTION FOR SUMMARY JUDGMENT

4520-1265:254991.1‘work with Defendants asbestos-containing
products created dust from box controls and
panels that Mr. Scott typically below out.
Union Carbide’s Bakelite thet was used for
high temperature and high voitage
applications, such as electrical equipment,
contained asbestos, Mr. Scott’s direct work
with and presence in close proximity to other
trades that worked with Defendant's
asbestos-containing products more likely
‘than not exposed him to respirable asbestos
released from Defendant's asbestos products.

Vassallo Decl., 2, 6; Celia Deel. 42-3; Carlo
Martino’s Deposition Testimony, pp. 1,

30:19-21; 32:9-23; 33:1-7, attached as
Exhibit B to the Wang Decl; Declaration of
Charles Ay, 8; Complaint; Declaration of
William Chesson, 2-3, 7.

DEFENDANT'S REPLY

Defendant objects to Plaintiffs’ evidence submitted in opposition to this Fact on the
grounds none of it is addressed to the specific subject matter of and evidence supporting this
Fact.

Defendant objects to and moves to strike the Declarations of Frank Vassallo, Vincent
Celia, William Chesson, and Mel Gadd on the ground that Plaintiff's had failed to disclose or
provide contact information for these witnesses pursuant to Defendant’s discovery requests.
Thoren v. Johnson & Washer 29 Cal. App. 3d 270 (1972). Defendant further objects to
Plaintiffs’ evidence on the grounds that the Declarations of Frank Vassallo, Vincent Celia,
‘William Chesson, Mel Gadd, and Charles Ay are speculative, lack foundation, are hearsay, and
should be stricken. S«

Objections to Declarations of Frank Vassallo, Vincent Celia, William
Chesson, Mel Gadd, and Charles Ay filed concurrently herewith,

Defendant further objects to Plaintiffs" evidence on the grounds that the deposition
testimony of Carlo Martino is mischaracterized, in that Mr. Martino specifically testified that the
asbestos-containing Bakelite used for high temperature applications was only sold to Square D,
Cutler-Hammer, and Allen Bradley. (Martino Deposition, 32:18-25, 33: 14-20, attached as
Exhibit B to Wang Decl.) Mr. Martino did not identify Westinghouse as a customer who

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CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF
DEFENDANT CBS CORPORATION'S MOTION FOR SUMMARY JUDGMENT

4520-1265:254691.1So wes a

purchased asbestos-containing Bakelite used for high temperature applications, Additionally,
Mr. Martino also testified that Bakelite was “a generic term . . . Just because it was called

Bakelite doesn’t mean that our product was in there.” (Jamison Decl, Ex. C, 38:16-21; emphasis
added.). Mr. Martino further testified that only 10 to 25 percent of the Bakelite contained
asbestos, and that the asbestos-containing Bakelite was used only for applications involving high
temperatures of 400 or 500 degrees Fahrenheit for long periods of time, (Jamison Decl. Ex. C,
212

22.) Plaintiffs have not produced any evidence that, assuming arguendo decedent worked
on Westinghouse product on any U.S. Naval vessel, that such product involved high
‘temperatures of 400 ot 500 degrees Fahrenheit for long periods of time, and thus was the type of
product that could have contained asbestos-containing Bakelite.

DEFENDANT’S UNDISPUTED PLAINTIFFS’ RESPONSE AND
MATERIAL FACT AND SUPPORTING SUPPORTING EVIDENCE
EVIDENCE
3. Plaintiffs have expressly disclaimed 3. Trrelevant and immaterial.

any liability based on any claims arising
under any federal enclave or pursuant to
any Officer of the U.S. or any agency or
person acting under him.

Supporting Evidence: Plaintiffs
eeeaint ior Wie faint for Wrongful Death (asbestos)
filed July 20, 2005, at § 12, p. 7:4-13,

aitnehed ‘hereto as Exhibit A to the Jamison
Decl.

DEFENDANT’S REPLY

This Fact is neither “irrelevant” nor “immaterial.” To the contrary, it is a judicial
admission and is binding on plaintiffs for all purposes.

In a motion for suromary judgment, neither party may rely on his own pleadings as a
factual source. (Romak iron Works v. Prudential Ins, Co. 104 Cal. App. 34767, 775.) However,
either party may rely on the other's pleadings, the allegations of which are judicial admissions.
(Uram y. Abex Corp., 27 C.A.34 1425, 1433 (1990) [defendant moving for summary judgment
may rely on allegations contained in plaintiff's complaint which constitute judicial admissions.])

See also,A judicial admission in a pleading is entirely different from an evidentiary admission.
5

CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF
DEFENDANT CBS CORPORATION'S MOTION FOR SUMMARY JUDGMENT
4520-1265:254681.1The judicial admission is not merely evidence of a fact; it is a conclusive concession of the truth
ofa matter and has the effect of removing it from the issues. Nor is a judicial admission treated
procedurally as evidence; the particular pleading or allegation is not formally offered in evidence
but may nevertheless be relied upon and treated in argument as part of the case. (Kirby v. Albert

D. Seeno Const. Co., 14 C.A.Ath 1059, 1066 (1992), footnote 4.) See also, Witkin, Cal. Evid. 4®

(2000) § 97.

All of Decedent’s work on United States Naval ships at the Hunters Point Naval
Shipyard, as purportedly testified to by the coworker witnesses, constitutes work on “federal
enclaves” excluded by paragraph 12 of Plaintiffs’ complaint. Fung v. Abex Corp., 816 f. supp.
569 (N.D. Cal. 1992).

Accordingly, by including paragraph 12 in their Complaint, plaintififs have conclusively
established that Westinghouse is absolutely excused from liability for any exposure by decedent
to any asbestos-containing Westinghouse product,

DEFENDANT’S UNDISPUTED PLAINTIFFS” RESPONSE AND

MATERIAL FACT AND SUPPORTING SUPPORTING EVIDENCE
EVIDENCE

4, Plaintiff's’ responses to all written 4. Disputed. Plaintiffs served

discovery in this action fail to identify any supplemental responses to Defendant’s

Westinghouse product, material ot special interrogatories on Defendant wherein

equipment as the source of any exposure to they identify, among other facts, Mr.

asbestos Decedent may have suffered nor, Vassallo, among others, as a witness

for that matter, even mention Westinghouse possessing facts that support Defendant’s

in any fashion whatsoever. liability in this case, Plaintiffs” supplemental

responses identify Defendant's asbestos-

Supporting Evidence: Standard containing products used by Mr. Scott, where

Interrogatories propounded by Defendants they were used, when they were used, and

(Wrongful Death), Set One, attached hereto how they were used,

as Exhibit B to the Jamison Decl.;

Plaintiffs’ Answers to Standard Plaintiffs’ Responses to Defendants’ Special

Interrogetories propounded by Defendants Interrogatories attached as Exhibit D to the

(Wrongful Death), Set One, dated February Wang Deel. §8.

24, 2004, at 11:6-12:24, attached hereto as

Exhibit € to the Jamison Decl.; Standard

Interrogatories propounded by Defendants

(Wrongful Death), Sct Two, attached hereto

as Exhibit D to the Jamison Decl.;

Plaintiffs’ Answers to Standard

lnterrogatories propounded by Defendants

(Wrongful Death), Set Two, dated February

22, 2007, attached hereto as Exhibit E to

the Jamison Decl.

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CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF
DEFENDANT CBS CORPORATION'S MOTION FOR SUMMARY JUDGMENT
+4520-1265:254691.1DEFENDANT’S REPLY

Contrary to Plaintiffs’ assertion, none of their discovery responses identify the asbestos-
containing Westinghouse products to which decedent was allegedly exposed. Moreover, none of
the so-called “evidence” cited by Plaintiffs in opposition to this Fact support their contentions.

Pages 10-12 of Plaintiffs’ responses to the General Order Interrogatories (Wrongful
Death Set Two), do not identify any Westinghouse products to which decedent could have been
exposed. Pages 10-11 reflect that from September 24, 1940 to April 4, 1960, decedent was
enlisted in the United States Navy as a Gunners Mate, and that he worked almost exclusively
with ordinance. There is no identification of any Westinghouse products, asbestos-containing or
otherwise. Page 11 also reflects that from 1960 to 1973, decedent, as a civilian employee, was
employed as an electrician at Hunters Point Naval Shipyard in San Francisco, California. The
only information given is that decedent worked in the engine rooms and around “various trades
including, but not limited to, shipfitters, welders, electricians, bumers, and pipe lagers.” Again,
there is no identification of any Westinghouse products, asbestos-containing or otherwise.

Pages 11 and 12 of the responses to Set Two of the GO Interrogatories state that decedent
worked as a gyrocompass mechanic for three months in 1973 at the Mare Island Naval Shipyard
in Vallejo, California, performing “work in Shop 51” as well as on “various ships.” No other
information was given, and again, no identification of any Westinghouse product was made.
Pages 11 and 12 also reflect that from 1973 to 1980, decedent was employed as an instrument
mechanic at the Alameda Naval Air Station in Alameda, California, “calibrating instruments in
different buildings.” Again, no identification of any Westinghouse products was made.

Page 12 also reflects that ftom 1981 to 1982, decedent was employed by Allan
Instrument Company in San Francisco, California, as a gyrocompass mechanic. Among his
duties, he overhauled the gyrocompass on board the USS Pyro while it was docked in San

Erancisco. Again, there was no identification of any Westinghouse products. Finally, Page 12

reflects that for approximately two years between 1982 and 1985, decedent was employed as a
gyrocompass mechanic for Gyro Marine Instrument, Inc., in San Francisco, California, where he

“performed gyrocompass work onboard various ships docked in San Francisco.” Once again,
7

‘CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF
DEFENDANT CBS CORPORATION'S MOTION FOR SUMMARY JUDGMENT
4520-1265:254691.1there was no identification of Westinghouse products,
Thus, plaintiffs’ responses to the GO Interrogatories do not establish that decedent was

exposed to any asbéstos-containing Westinghouse product, and thus the essential clement of
causation has not been established. (Linecnveaver v. Plant Insulation Co., 31 Cal-App.4* 1409,
1415-16 (1995); Andrews v. Foster Wheeler LEC, 138 Cal. App. 4" 96, 107 (2006.))

Plaintiffs’ supplemental responses to Defendant’s special interrogatories proved little
more information. In response to Special Interrogatory No. 4, which requested plaintiffs to
“state all facts” that supported their contentions decedent was exposed to any asbestos-containing
product manufactured, supplied, or otherwise placed into the stream of commerce by

Westinghouse, plaintiffs stated

Objection, attorney-client privilege, attorney work product privilege, vague,
ambiguous, compound, and extremely overbroad. Without waiving said
objection, plaintiffs respond as follows: decedent’s exposure to asbestos may
have included, but is not limited to: asbestos-containing insulation materials,
asbestos-containing gaskets, asbestos-containing packing, asbestos-containing
wire/cable, asbestos-containing motors, asbestos-containing wallboard, asbesios-
containing phenolic resins; asbestos-coniaining Micarta, asbestos-containing
switches, asbestos-containing engines, asbestos-containing switch boxes,
asbestos-containing circuit boards, asbestos-containing paper, asbestos-containing
electrical products and power supplies and other chrysotile, amosite, and
crocidolite asbestos-containing materials supplied by defendant. PI
continuing to research the specific brand-names, dates of exposure, packagin,
and labeling of all asbestos-containing products to which plaintiff [sic] was
exposed. Due to a number of years over which plaintiff's [sic] exposure occurred
and the fact that plaintiff's [sic] discovery is ongoing, plaintiff [sic] has not yet
been able to specify some brand names, dates of exposure, packaging and labeling
of all products. Additionally, decedent was exposed to defendant's asbestos and
asbestos-containing materials used by others working in close proximity to

plaintiff of a kind, type, and variety that plaintiffs may not be aware. Decedent’s
‘exposure to defendants asbestos and asbestos-containing producis, resulting from

decedent's and others’ manipulation, installing, cutting, splicing, hammering,
removing, or otherwise disturbing defendant’s asbestos products, occurred on a
regular basis throughout the duration of decedent’s working career at job sites,
including, U.S. Navy, September 24, 1940-April 4, 1060, Hunters Point Naval

Shipyard, San Francisco, California, 1960-1973, Mare Island Naval Shipyard,
1960-1973, Alameda Naval Air Station, Alameda, California, 1973-1980, Allan
Instrument Company, Inc., San Francisco, California, 1981-1982, Gyro Marine
Instrument, Inc., San Francisco, California, 1982-1985, Plaintiffs reserve the
right to supplement or amend this response as discovery and investigation
continue. (Emphasis added.) (Kang Decl. Ex. D, p. 3.)

Be

This laundry list of products which may have exposed decedent to asbestos is
insufficient to meet plaintiffs’ burden on summary judgment because the mere possibility that
8

CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF
DEFENDANT CBS CORPORATION'S MOTION FOR SUMMARY JUDGMENT
4520-1265:254691.1decedent was exposed to one or more of those products does not defeat summary judgment.
(MeGonnell v. Kaiser Gypsum Co., 98 Cal.App.4" 1098, 1105 (1994.) Plaintiffs” Second
Supplemental Response to Interrogatory No. 4 docs not add any substantive information.
(Jamison Deel. Ex. B.)

‘Westinghouse also requested the names and addresses all of persons who plaintiffs
contend had personal knowledge that decedent was exposed to asbestos from Westinghouse
products. After objecting on the’ grounds of attorney-client and work product privileges,
plaintifis identified the following:

Denzil Scott, Nancy Scott, Joanne Wolfarth, Michael Scott, Robert Scott, Thomas

Scott, Mary Sobolik (all plaintiffs c/o Keller, Fishback & Jackson LLP), Victor

Trinchese, c/o Brayton Purcell, Novato, CA, Steven Martin, c/o Brayton Purcell,

Novato, CA, Ray Rachetti, Frank Vassallo, Person Most Knowledgeable from all

defendants listed in the Complaint filed herein, decedent's employers, decedent's
co-workers at the above-listed job sites.

In their Second Supplemental response, plaintiffs added

Arthur Sams, Downey, CA, . . . Bob Aiello, Fairfield, CA, William Wong; c/o
‘Wartnick Law Firm, Rich Mederos, Pleasanton, CA, Nico Bertolinni, address
unknown, . .. William Chesson, c/o Keller, Fishback & Jackson, LLP; Frank
Vassallo, c/o Keller, Fishback & Jackson, LLP, Vincent Celia, Kona, Hawaii, Mel
Gadd, c/o Wartnick’Law Firm, Howard Scott, ..” (They also noted that Victor
Trinchese was represented by Paul, Hanley & Harley rather than Brayton Purcell.)

Plaintiffs did not identify any documents that support their contentions that decedent was
exposed to asbestos-containing Westinghouse products. ‘In their first supplemental responses,
they stated

Plaintiffs’ investigation and discovery are continuing. “Plaintiff is [sic] currently

‘not in possession of any documents other than those that previously [sic]

produced to defendants. Document [sic] responsive tot his request are equally

available to defendant and/or in possession, custody or control of defendant or

another party or third party, previously produced to defendants, or subject to

expert witness disclosure rules as set forth in CCP section 2034, et seq. Also,

documents responsive to this request may be subjéct to copyright or trademark

rules and regulations, and may not be reproduced.”

‘The Second Supplemental Responscs merely add that “[t]o the cxtent that plaintiffs are in
‘possession of responsive documents, and to the extent that those documents have not already

‘been produced, plaintifié will produce the same.”
9

CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF
DEFENDANT CBS CORPORATION'S MOTION FOR SUMMARY JUDGMENT
4520-1265:254691.1Roe ye

a

Contrary to plaintiffs’ assertion, both their first and second supplemental discovery
responses are almost as factually devoid as their original responses. ‘They did not identify any
asbestos-containing Westinghouse products to which decedent was in fact exposed. Merely
making generalized allegations of exposure does not take them out of the realm of “factually

devoid” discovery responses, and does not satisfy their burden on summary judgment. (Andrews

¥. Foster Wheeler, LLC, supra, 138 Cal.App.4” at 107; “If plaintiffs respond to comprehensive
interrogatories seeking all known facts with boilerplate answers that restate their allegations, or
simply provide laundry lists of people and/or documents, the burden of production will almost
certainly be shifted to them once defendants move for summary judgment and properly present
plaintiffs’ factually devoid discovery responses. To find otherwise would not only subvert
Scheiding, but would also encourage wild goose chases that undermine the purpose of our
modern discovery rules.”)

Here, plaintiffs’ “facts” are nothing more than glorified allegations. They failed to
specifically identify any documents that support their contentions, and even after a motion to
compel, they failed to provide addresses of the lay witnesses they claim have personal
knowledge of decedent's asbestos exposure, thereby preventing Defendant from taking their
depositions. Moreover, identifying decedent and plaintiffs, themselves, as witnesses is not
sufficient: Denzil Scott is dead and therefore has no “personal knowledge” that can be
discovered, and all of the plaintiffs testified at deposition that they have no personal knowledge
of devedent’s exposure. (Westinghouse’s SSUF Nos. 7-16.) See Jamison Decl. and Ex. B
thereto filed concurrently herewith.

DEFENDANT’S UNDISPUTED PLAINTIFFS’ RESPONSE AND
MATERIAL FACT AND SUPPORTING SUPPORTING EVIDENCE
EVIDENCE
5. ___ Westinghouse propounded upon 5. Disputed. Defendant served
Plaintiffs comprehensive and specific discovery on Plaintiffs containing vague,
written discovery to all Plaintiffs, requiring ambiguous, and otherwise defective requests
each Plaintiff to provide all supporting and demands. Nonctheless, Plaintiffs served
facts, as well as to identify all supporting supplemental responses to Defendants
witnesses and documents, specifie to their special interrogatories on Defendant wherein
claims as to Westinghouse. they identify, among other facts, Mr.
Vassallo, among others, as a witness

10

CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF
DEFENDANT CBS CORPORATION'S MOTION FOR SUMMARY JUDGMENT

4520-1265:284691.1Supporting Evidence: CBS Corporation’s
Special Interrogatories to Plaintiffs, Set

One, dated May 4, 2006, attached hereto as
Exhibit F to the Jamison Decl.

ssessing facts that support Defendant’s
liability in this case. Plaintiffs’ supplemental
responses identify Defendant's asbestos-
containing products used by Mr. Scott, where

they wore used, when they were used, and ~
how they were used.

Plaintiffs’ Responses to Defendants’ Special
Interrogatories attached as Exhibit D to the
Wang Decl. §8.

DEFENDANT’S REPLY

None of Defendant's special discovery devises were vague, ambiguous, overbroad, or
“otherwise defective.” As an examination of those discovery devices show', Westinghouse’s
special discovery was geared to the specific allegations contained in Plaintiffs’ Complaint.

Plaintiffs conveniently failed to mention that their original responses to Westinghouse’s
special discovery, upon which Defendant based its summary judgment motion, consisted entirely
of meritless objections with no responsive information. Defendant was required to file a Motion
to Compel Further Responses to Discovery, heard on May 21, 2007 before the Honorable Bruce
Chan, Commissioner. Prior to the hearing date, Plaintiffs served the supplemental responses,
which prompted Comm. Chan to find the motion to be moot, but also prompted the Court to
explicitly find that “plaintiff has stated general objections and a preliminary statement. General
objections are not authorized by the Code of Civil Procedure and would be stricken.

Furthermore, the Court would find that many of the answers are non-responsive and state

objections that lack merit. The parties are ordered to meet and confer. The Court finds that
plaintiff previously failed to respond in a timely fashion and made evasive responses thereby
requiring the filing of the instant motion. Monetary sanctions in the amount of $1,450 are to be
paid within 30 days of the notice of this order.” (Emphasis added.) A true and correct copy of
the Court's May 21, 2007 Minute Order is attached as Exhibit A to the Declaration of Kevin D-
Jamison (“Jamison Decl.”) filed concurrently herewith. As set forth in Mr. Jamison’s

' Defendant respectfully invites this Court’s attention to their Motion to Compel Further
Responses to Discovery, heard before the Hon. Bruce Chan, Commissioner on May 21, 2007,
and all papers and Court orders pertaining thereto.

W

CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF
DEFENDANT CBS CORPORATION'S MOTION FOR SUMMARY JUDGMENT

4520-1265:254601.1&

declaration, Plaintiffs" counsel refused to meet and confer in good faith, forcing Defendant to
appear ex parte on May 31, 2007 for an OST to hear another Motion to Compel. Comm. Chan
again ordered the parties to meet and confer, and Plaintiffs’ counsel again refused to do so. A.
further ex parte hearing was held before Comm. Chan on June 1, 2007, during which Plaintiffs’
counsel finally agreed to provide further supplemental rebponses on June 8, 2007. (Jamison
Deel. $3-5)

Pursuant to Cal. Evid. Code § 451(a), Defendant respectfully requests this Court take
judicial notice of Westinghouse’s Motion to Compel Further Responses to Discovery, the papers
filed therein, and the Court orders associated therewith. As discussed herein, neither the first

supplemental responses, nor the second supplemental responses disclose any substantive

evidence regarding decedent’s alleged exposure to Defendant's products.

DEFENDANT’S UNDISPUTED

MATERIAL FACT AND SUPPORTING
EVIDENCE

PLAINTIFFS’ RESPONSE AND
SUPPORTING EVIDENCE

6. As with Plaintiffs’ responses to
Standard Asbestos Interrogatories, Sets One
and Two, Plaintiffs merely raised
groundless, boilerplate objections to
‘Westinghouse’s Special Interogatories and
failed to provide any factual
whatsoever, to support their claims ‘against
‘Westinghouse.

Plaintiffs’

Su Eviden
Sarna Seely Prepared
Interrogetories propounded by CBS, Set
One, dated March 2, 2007, attached hereto
as Exhibit G to the Jamison Decl.

6. _ Disputed. Defendant served
discovery on Plaintiffs containing vague,
ambiguous, and otherwise defective requests
and demands. Nonetheless, Plaintiffs served
supplemental responses to Defendant’s
special interrogatories on Defendant wherein
they identify, among other facts, Mr.
Vassallo, among others, as a witness
possessing facts that support Defendant’s
liability in this case, Plaintiffs’ supplemental
responses identify Defendant's asbestos-
containing products used by Mr. Scott, where
they were used, when they were used, and
how they were used.

Plaintif1s? Responses to Defendants’ Special
Interrogatorics attached as Exhibit D to the
Wang Decl. §8.

DEFENDANT'S REPLY

None of Defendant’s special discovery devices were vague, ambiguous, overbroad, or

“otherwise defective.”

As an examination of those discovery devices show, Westinghouse’s

special discovery was geared to the specific allegations contained in Plaintiffs’ Complaint.

Plaintiffs conveniently failed to mention that their original responses to Westinghouse’s
12

‘CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF
DEFENDANT CBS CORPORATION'S MOTION FOR SUMMARY JUDGMENT

4520-1265:254691.1special discovery, upon which Defendant based its summiary judgment motion, consisted entirely
of meritless objections with no responsive information. Defendant was required to file a Motion
to Compel Further Responses to Discovery, heard on May 21, 2007 before the Honorable Bruce
Chan, Commissioner. Prior to the hearing date, Plaintiffs served the supplemental responses,
which prompted Comra. Chan to find the motioa to be moot, but also prompted the Court to
explicitly find that “plaintiff has stated general objections and a preliminary statement. General
objections are not authorized by the Code of Civil Procedure and would be stricken.
Furthermore, the Court would find that many of the answers are non-responsive and state
objections that lack merit, The parties are ordered to meet and confer. The Court finds that
plaintiff previously failed to respond in a timely fashion and made evasive responses thereby
requiring the filing of the instant motion. Monetary sanctions in the amount of $1,450 are to be
paid within 30 days of the notice of this order.” (Emphasis added.) A true and correct copy of
the Court’s May 21, 2007 Minute Order is attached as Exhibit A to the Declaration of Kevin D.
Jamison (“Jamison Decl.”) filed concurrently herewith. As set forth in Mr. Jamison’s
declaration, Plaintiffs’ counsel refiused to meet and confer in good faith, forcing Defendant to
appear ex parte on May 31, 2007 for an OST to hear another Motion to Compel. Comm. Chan
again ordered the parties to meet and confer, and Plaintiffs’ counsel again refused to do so. A
farther ex parte hearing was held before Comm. Chan on June 1, 2007, during which Plaintiffs’
counsel finally agreed to provide further supplemental responses on June 8, 2007. (Jamison
Decl. 73-5)

Pursuant to Cal. Evid. Code § 451(a), Defendant respectfully requests this Court take
judicial notice of Westinghousc’s Motion to Compel Further Responses to Discovery, the papers
filed therein, and the Court orders associated therewith. As discussed herein, neither the first
supplemental responses, nor the second supplemental responses disclose any substantive
evidence regarding deccdcnt’s alleged exposure to Defendant’s products.

fil
DEFENDANT’S UNDISPUTED PLAINTIFFS’ RESPONSE AND
MATERIAL FACT AND SUPPORTING SUPPORTING EVIDENCE
EVIDENCE

B

CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF
DEFENDANT CBS CORPORATION'S MOTION FOR SUMMARY JUDGMENT
4520-1265.254691.17, Plaintiff Nancy Scott testified she
did not have any information as to whether
Decedent ever worked with or around any
products manufactured or distributed by

‘Westinghouse.

Supporting Evidence: Deposition of
Plaintiff Nancy Scott, taken on December
18, 2006 at p. 204:4-10, attached hereto as
Exhibit H to the Jamison Deel.

7. Disputed. In Plaintiff’ discovery
responses in this wrongful death case,
Plaintiffs set forth specific facts detailing Mr.
Scott’s exposure to, Defendant’s asbestos~
containing products while working as an
electrician at Hunter’s Point Naval Shipyard
between 1960 and the early 1970s. Frank
Vassallo and Vincent Celia, Mr. Scott’s co-
workers at HPNSY from the 1960s and early
1970s, remember seeing Mr. Scott working

- with and in the presence of other trades that

worked with Defendant's asbestos-
containing products. Mr. Vassallo recalls
that Mr. Scott’s work to Westinghouse
motors, turbines and associated electrical
equipment caused dust from the stripping of
multiple heat wire and high temperature wire.
He recalls Westinghouse equipment that was
insulated and that insulation was disturbed
during Mr. Scott’s work on it. He
remembers that trades removed gaskets and
seals from Westinghouse equipment that
appeared to be fibrous in nature. The dust
from this work was breathed by all around it
including Mr. Scott. He states that the
Westinghouse name and logo was on the
equipment identifying it as such and there
‘were manuals that also identified
Westinghouse. Mr. Celia recalls that Mr.
Scott worked with Bakelite phenolic molding
compounds and insulating boards, drilling,
cutting and filing them at times during
installation and replacement which invariably
caused dust to be generated. He remembers
that Bakelite was associated with motors,
motor controls, switches, terminal boards,
power panels and switch gear made by
Westinghouse, which Mr. Scott worked on
and changed out during his tenure at
Hunter’s Point Naval Shipyard as an
electrician. Mr. Scott’s supervisor, William
‘Chesson, recalls Mr. Scott’s work as an
apprentice electrician at HPNSY in the early
1960s. He recalls Mr. Scott working with
‘Westinghouse switch gear, motors, control
panels, controllers and power panels. This
work included repair to damaged internal
Bakelite phenolic molding materials,
contained within the Westinghouse
equipment. He remembers that Mr. Scott’s
work with Defendant’s asbestos-containing
products created dust from box controls and
panels that Mr. Scott typically below out.
Union Carbide’s Bakelite that was used for
high temperature and high voltage

CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF
DEFENDANT CBS CORPORATION'S MOTION FOR SUMMARY JUDGMENT

4520-1265:254691.1applications, such as electrical equipment,
contained asbestos. Mr. Scott’s direct work
with and presence in close proximity to other
trades that worked with Defendant’s
asbestos-containing products more likely
than not exposed him to respirable asbestos
released from Defendant's asbestos products.

Vassallo Decl., §2, 6; Celia Decl. 42-3; Carlo
Martino’s Deposition Testimony, pp. 1,
30:19-21; 32:9-23; 33:1-7, attached as,
Exhibit B to the Wang Dec]; Declaration of
Charles Ay, $8; Plaintifls’ Responses to
Defendanis’ Special Interrogatories attached
as Exhibit D to the Wang Decl. 48-9;
Chesson Decl, 2-3, 7.

DEFENDANT’S REPLY

Defendant objects to Plaintiffs’ evidence submitted opposition to this Fact, in that none of
‘the evidence cited by Plaintiffs contradicts the sworn deposition testimony of Plaintiff Nancy
Scott.

Defendant objects to and moves to strike the Declarations of Frank Vassallo, Vincent
Celia, William Chesson, and Mel Gadd on the ground that Plaintiffs had failed to disclose or
provide contact information for these witnesses pursuant to Defendant’s discovery requests.
Thoren v. Johnson & Washer 29 Cal. App. 34270 (1972). Defendant further objects to
Plaintiffs’ evidence on the grounds that the Declarations of Frank Vassallo, Vincent Celia,
William Chesson, Mel Gadd, and Charles Ay are speculative, lack foundation, are hearsay, and
should be stricken, See Objections to Declarations of Frank Vassallo, Vincent Celia, William
Chesson, Mel Gadd, and Charles Ay filed concurrently herewith.

Defendant further objects to Plaintiffs” evidence on the grounds that the deposition
testimony of Carlo Martino is mischaracterized, in that Mr. Martino specifically testified that the
asbestos-containing Bakelite used for high temperature applications was only sold to Square D,
Cutler-Hammer, and Allen Bradley. (Martine Deposition, 32:18-25, 33: 14-20, attached as
Exhibit B to Wang Decl.) Mr. Martino did not identify Westinghouse as a customer who
purchased asbestos-containing Bakelite used for high temperature applications. Additionally,

Mr. Martino also testified that Bakelite was “a generic term... Just because it was called
15

CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF
DEFENDANT CBS CORPORATION'S MOTION FOR SUMMARY JUDGMENT

4520-1265:254691.1Bakelite doesn’t mean that our product was in there.” (Jamison Decl. Ex. C, 38:16-21; emphasis

added.) Mr. Martino further testified that only 10 to 25 percent of the Bakelite contained
asbestos, and that the asbestos-containing Bakelite was used only for applications involving high
‘temperatuies of 400 or 500 degrees Fahrenheit for long periods of time. (Jamison Decl. Fx. C,
21:2-22.) Plaintiffs have not produced any evidence that, assuming arguendo decedent worked
‘on Westinghotise product on any U.S. Naval vessel, that such product involved high
temperatures of 400 or 500 degrces Fahrenheit for long periods of time, and thus was the type of
product that could have contained asbestos-containing Bakelite.

DEFENDANT'S UNDISPUTED PLAINTIFFS” RESPONS!
MATERIAL FACT AND SUPPORTING ‘SUPPORTING EVIDENCE
EVIDENCE
8. Plaintiff Joanne Wolfarth did not 8. Disputed. In Plaintiffs’ discovery
know the brand name, manufacturer or responses in this wrongful death case,
supplier of any produets or materials with Plaintiffs set forth specific facts detailing Mr.
which Decedent may have worked while Scott’s exposure to Defendant’s asbestos-
serving in the U.S. Navy containing products while working as an
ena Evi ‘aa electrician at Hunter’s Point Naval Shipyard

Supporting Evidence: Deposition of between 1960 and the early 1970s, Frank
Joanne Wolfarth, taken on December 19, Vassallo and Vincent Celia, Mr. Scott’s co-
2006 at p. 40:17-20, attached hereto as workers at HPNSY from the 1960s and early
Exhibit I to the Jamison Decl. 1970s, remember seeing Mr. Scott working

with and in the presence of other trades that
worked with Defendant’s asbestos-
containing products. Mr. Vassallo recalls
that Mr. Scott’s work to Westinghouse
motors, turbines and associated electrical
equipment caused dust from the stripping of
multiple heat wire and high temperature wire.
He recalls Westinghouse equipment that was
insulated and that insulation was disturbed
during Mr, Scott’s work on it. He
remembers that trades removed gaskets and
scals from Westinghouse equipment that
appeared to be fibrous in nature. The dust
from this work was breathed by all around it
including Mr. Scott. He states that the
‘Westinghouse name and logo was on the
equipment identifying it as such and there
‘were manuals that also identified
Westinghouse, Mr. Celia recalls that Mr.
Scott worked with Bakelite phenolic molding
compounds and insulating boards, drilling,
cutting and filing them at times during
installation and replacement which invariably

caused dust to be generated. He remembers

i6

‘CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF
DEFENDANT CBS CORPORATION'S MOTION FOR SUMMARY JUDGMENT
45201265:254691,1that Bakelite was associated with motors,
motor controls, switches, terminal boards,
power panels and switch gear made by
Westinghouse, which Mr. Scott worked on
and.changed out during his tenure at
Hunier’s Point Naval Shipyard as an.
electrician. Mr. Scott’s supervisor, William
Chesson, recalls Mr. Scott’s work as an
apprentice electrician at HPNSY in the carly.
1960s, He recalls Mr. Scott working with
Westinghouse switch gear, motors, control
panels, controllers and power panels. This
‘work included repair to damaged internal
Bakelite phenolic molding materials
contained within the Westinghouse
equipment. He remembers that Mr. Scott’s
work with Defendant’s asbestos-containing
products created dust from box controls and
panels that Mr. Scott typically below out.
Union Carbide’s Bakelite that was used for
high temperature and high voltage
applications, such as electrical equipment,
contained asbestos. Mr. Scott’s direct work
with and presence in close proximity to other
trades that worked with Defendant’s
asbestos-containing products more likely
than not exposed him to respirable asbestos
released ftom Defendant’s asbestos products.

Vassallo Decl., 2, 6; Celia Deel. (2-3; Carlo
Martino’s Deposition Testimony, pp. 1,
30:19-21; 32:9-23; 33:1-7, attached as
Exhibit B to the Wang Decl; Declaration of
Charles Ay, 48 ; Plaintiffs’ Responses to
Defendants’ Special Interrogatories attached
as Exhibit D to the Wang Decl. 8-9;
Chesson Decl. 2-3, 7.

DEFENDANT’S REPLY

Defendant objects to Plaintiffs’ evidence submitted opposition to this Fact, in that none of
the evidence cited by Plaintiffs contradicts the sworn deposition testimony of Plaintiff Joanne
Wolfarth.

Defendant objects to and moves to strike the Declarations of Frank Vassallo, Vincent
Celia, William Chesson, and Mel Gadd on the ground that Plaintiffs had failed to disclose or
provide contact information for these witnesses pursuant to Defendant’s discovery requests.
Thoren v. Johnson & Washer 29 Cal. App. 3d 270 (1972). Defendant further objects to
Plaintiffs’ evidence on the grounds that the Declarations of Frank Vassallo, Vincent Celia,

CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF
DEFENDANT CBS CORPORATION'S MOTION FOR SUMMARY JUDGMENT
4520-1265:254881,1William Chesson, Mel Gadd, and Charles Ay are speculative, lack foundation, are hearsay, and
should be stricken. See, Objections to Declarations of Frank Vassallo, Vincent Celia, William
Chesson, Mel Gadd, and Charles Ay filed concurrently herewith.

Defendant further objects (o Plaintiffs” evidence on the grounds that the deposition
testimony of Carlo Martino is mischaracterized, in that Mr. Martino specifically testified that the
asbestos-containing Bakelite used for high temperature applications was only sold to Square D,
Cutler-Hammer, and Allen Bradley. (Martino Deposition, 32:18-25, 33: 14-20, attached as
Exhibit B to Wang Decl.) Mr. Martino did not identify Westinghouse as a customer who
purchased asbestos-containing Bakelite used for high temperature applications. Additionally,
Mr. Marino also testified that Bakelite was “a generic term . . . Just because it was called
Bakelite doesn’t mean that our product was in there.” (Jamison Decl. Bx. C, 38:16-21; emphasis
added.) Mr. Martino further testified that only 10 to 25 percent of the Bakelite contained
asbestos, and that the asbestos-containing Bakelite was uséd only for applications involving high
‘temperatures of 400 or 500 degrees Fahrenheit for long periods of time. (Jamison Decl. Ex. C,
21:2-22.) Plaintiff's have not produced any evidence that, assuming arguendo decedent worked
on Westinghouse product on any U.S. Naval vessel, that such product involved high
temperatures of 400 or 500 degrees Fahrenheit for long periods of time, and thus was the type of

product that could have contained asbestos-containing Bakelite.

DEFENDANT’S UNDISPUTED PLAINTIFFS’ RESPONSE AND,
MATERIAL FACT AND SUPPORTING SUPPORTING EVIDENCE,
EVIDENCE,
9. Plaintiff Michael Scott testified he 9. Disputed. In PlaintiIs" discovery
did not know the brand name, manufacturer tesponses in this wrongful death case,
or supplier of any products or materials Plaintiffs set forth specific facts detailing Mr.
with which Decedent may have worked Scott’s exposure to Defendants asbestos-
while serving in the U.S. Navy. containing products while working as an
. oe . electrician at Hunter's Point Naval Shipyard
Supporting Evidence: Deposition of between 1960 and the early 1970s. Frank
Michael Scott, taken on December 19, 2006 Vassallo and Vincent Celia, Mr. Scott’s co-
at p. 26:7-1, attached hereto as Exhibit J to workers at HPNSY from the 1960s and early
the Jamison Decl. - 1970s, remember seeing Mr. Scott working
with and in the presence of other trades that
worked with Defendant's asbestos-
containing products, Mr. Vassallo recalls
that Mr. Scott’s work to Westinghouse

‘CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF
DEFENDANT CBS CORPORATION'S MOTION FOR SUMMARY JUDGMENT
4520-1265:254691.1motors, turbines and associated electrical
equipment caused dust from the stripping of
multiple heat wire and high temperature wire.
He recalls Westinghouse equipment that was
insulated and that msulation was disturbed
during Mr. Scott’s work on it. He
remembers that trades removed gaskets and
seals from Westinghouse equipment that
appeared to be fibrous in nature. The dust
from this work was breathed by all around it
including Mr. Scott. He states that the
Westinghouse name and logo. was on the
equipment identifying it as such and there
were manuals that also identified
Westinghouse. Mr. Celia recalls that Mr.
Scott worked with Bakelite phenolic molding
compounds and insulating boards, drilling,
cutting and filing them at times during
installation and replacement which invariably
caused dust to be generated. He remembers
that Bakelite was associated with motors,
motor controls, switches, terminal boards,
power panels and switch gear made by
Westinghouse, which Mr. Scott worked on
and changed out during his tenure at
Hunter’s Point Naval Shipyard as an
electrician. Mr. Scott’s supervisor, William
Chesson, recalls Mr. Scott’s work as an
apprentice electrician at HPNSY in the early
1960s. He recalls Mr. Scott working with
Westinghouse switch gear, motors, control
panels, controllers and ‘power panels. This
work included repair to damaged internal
Bakelite phenolic molding materials
contained within the Westinghouse
equipment. He remembers that Mr. Scott’s
work with Defendant’s asbestos-containing
products created dust from box controls and
panels that Mr. Scott typically below out.
Union Carbide’s Bakelite that was used for
high temperature and high voltage
applications, such as electrical equipment,
contained asbestos. Mr. Scott's direct work
with and presence in close proximity to other
trades that worked with Defendant's
asbestos-containing products more likely
than not exposed him to respirable asbestos
released from Defendant's asbestos products.

Vassallo Decl., 42, 6; Colia Decl. 2-3; Carlo
Martino’s Deposition Testimony, pp. 1,
30:19-21; 32:9-23; 33:1-7, attached as
Exhibit B to the Wang Decl; Declaration of
Charles Ay, £8; Plaintiffs’ Responses to
Defendants’ Special Interrogatories attached

19

+4520-1265:254691.1

‘CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF
DEFENDANT CBS CORPORATION'S MOTION FOR SUMMARY JUDGMENTas Exhibit D to the Wang Decl. 98-9;
Chesson Decl. 2-3, 7

DEFENDANT’S REPLY

Defendant objects to Plaintiffs’ evidence submitted opposition to this Fact, in that none of
the evidence cited by Plaintiffs contradicts the sworn deposition testimony of Plaintiff Michael
Scott.

Defendant objects to and moves to strike the Declarations of Frank Vassallo, Vincent
Celia, William Chesson, and Mel Gadd on the ground that Plaintiff's had failed to disclose or
provide contact information for these witnesses pursuant to Defendant's discovery requests.
Thoren v. Johnson & Washer 29 Cal. App. 3d 270 (1972). Defendant further objects to
Plaintiffs’ evidence on the grounds that the Declarations of Frank Vassallo, Vincent Celia,
William Chesson, Mel Gadd, and Charles Ay are speculative, lack foundation, are hearsay, and
should be stricken. See, Objections to Declarations of Frank Vassallo, Vincent Celia, William
Chesson, Mel Gadd, and Charles Ay filed concurrently herewith.

Defendant fur