Motion-Secondary: JAMES RODAMER VS. A.W. CHESTERTON COMPANY et al

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                                Selman Breitman LLP
ATTORNEYS AT LAW

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127577.1 454.23 184

MARK A. LOVE (SBN 162028)

JANICE W. MAN (SBN 209956) ELECTRONICALLY
SELMAN BREITMAN LLP FILED

33 New Montgomery, Sixth Floor Superior Court of California,
San Francisco, Se 94] yO County of San Francisco
Telephone: (415} 979-0

Facsimile: (415) 979-2099 MAR 27 2007
mlove@selmanbreitman.com GORDON PARK-LI, Clerk

BY: ALISON AGBAY

jman@selmanbreitman.com
Deputy Clerk

Attorneys for Defendant
RAY L. HELLWIG PLUMBING
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION

JAMES RODAMER and NANCY RODAMER, CASE NO. 456569
Plaintiffs, MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
v. DEFENDANT RAY L. HELLWIG
PLUMBING’S MOTION FOR
A.W. CHESTERTON COMPANY, et al., SUMMARY JUDGMENT
Defendants. Date : April 13, 2007
Time : 9:30 A.M.
Dept. : 301
Judge : Hon. Peter J. Busch
Tnal Date : Apnl 30, 2007

Complaint Filed : September 29, 2006

I. INTRODUCTION

Moving party, Ray L. Hellwig Plumbing (hereinafler "HELLWIG"), brings this
instant motion Tor summary judgment. Plaintiffs Jamcs Rodamer and Nancy Rodamer
(hercinafter "PLATNITFFS") filed the instant personal injury action on September 29,
2006. They allege defendants, including TELL WIG, exposed Jamcs Rodamer (hereinafter
"RODAMER"} to asbestos and caused him to develop mesothelioma. PLAINTIFFS have
not produced any evidence to show HELLWIG exposed RODAMER to asbestos-
containing materials. Based on the foregoing, HELLWIG hereby moves this Court to

enter summary judgment in its favor.

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IL STATUTORY AUTHORITY

California Code of Civil Procedure § 437(c) scts forth the applicable law pertaining
to motions for summary judgment:

Any party may move for summary judgment in any action or proceeding if it

is contended that the action has no merit or that there is no defense to the

action or proceeding. (Code of Civil Procedure § 437(c)(a)).

The motion for summary judgment shall be granted if all the papers submit-

ted show that there is no triable issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.(Code of Civil

Procedure § 437(c)(c)).

Ii STATEMENT OF FACTS

PLAINTIFFS filed the instant asbestos-related personal injury action on September
29,2006. (SUF 1.) PLAINTIFFS allege RODAMER was exposed to asbestos-containing
products as a combat engineer for the US Marine Corps from 1953-1957; helper and
machinery assembler for Frank W. Egan from 1957-1959; maintenance mechanic’
Icadman/maintenance supervisor for Raychem Corp. from 1959-1973; and as a
repairman/plumber for various employers from 1973-2006. (SUF 2.) PLAINTIFFS claim
RODAMER was exposed to asbestos-containing products by HELLWIG when he worked
at Raychem Corp. in Menlo Park and Redwood City in the 1960s and 1970s. (SUF 3.)

At deposition, RODAMER recalls HELLWIG as a contractor during the
construction of the chemical plant and pilot plant at Raychem in Menlo Park in the late
1960s. (SUF 4 & 5.) For the construction of the chemical plant, he testified HELLWIG
“ran” the piping and "installed the machinery for the process" and Raychem employees
“connect{ed] to the piping that was overhead and [brought] it down to the process itself.”
(SUF 6.) He recalls HELLWIG employees installing piping inside and outside of the
chemical plant. (SUF 7.) He recalls the piping was made out of steel. (SUF 8.)

RODAMER does not know whether HELLWIG insulated the piping they installed.
(SUF 9.) When RODAMER was asked whether he ever saw HELLWIG employees use
any thermal insulation, his reply was, "The insulation on the outside of the pipe, like I said,

if they used [thermal insulation], I'm not sure. It was either Douglas or Ilellwig that did

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the insulation on that pipe." (SUF 10.) He further testified that he just saw insulation but
does not recall seeing any HELLWIG employees actually installing them. (SUF 11.)
Other than the piping, RODAMER cannot recall seeing HELLWIG employees using other
materials for the construction of the chemical plant. (SUF 12.)

RODAMER also recalls HELLWIG doing plumbing work for the construction of
the pilot plant. (SUF 13.) He does not recall what materials HELLWIG used for the
construction of the pilot plant. (SUF 14.) Other than the chemical plant and the pilot
plant, RODAMER does not recall HELI.WIG during the construction of other buildings at
Raychem’s Menlo Park facility. (SUF 15.) Ile also does not recall IIELLWIG being at
the Redwood City facility of Raychem. (SUF 16.) Furthermore, he has no information
that the materials used by HELL WIG contained asbestos. (SUF 17.)

After RODAMER’s deposition, PLAINTIFFS’ counsel identified Al Haole as a
product identification and causation witnesses against HELLWIG. (SUF 18.) Ina
declaration signed by Al Haole, Mr. Haole stated to have recalled RODAMER as one of
his coworker whom he worked with during the new construction of Raychem Corp.'s
Menlo Park facility. (SUF 19.) He recalls HELLWIG was one of the contractors that
worked on the new construction of Raychem's Menlo Park facility. (SUF 20.) He also
recalls HELLWIG installing underground pipes for the main lines and overhead pipes for
the equipment using materials that were made out of steel, cooper and plastic to perform
their work. (SUF 21 & 22.) He does not recall HELLWIG supplying or installing any
transite pipe. (SUF 23.) For the insulation work at Raychem, Mr. Haole recalls most of
the pipe insulation was installed by Raychem employees with some to have been installed
by an outside insulation contractor which he cannot recall the name of. (SUF 24 & 25.)
Ile does not recall seeing HELLWIG install any pipe insulation. (SUF 26.)

As declared by Glen Bollenbacher, current President of HELLWIG who had been
in other capacities with HELLWIG since 1955, HELLWIG is a contractor that performs
plumbing work. (Declaration of Glen Bollenbacher, | 1 & 3.) Since insulation is a

specified skill performed by a different trade with a separate union, HELLWIG has never

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entered into a contract to perform pipe insulation work and docs not employ insulators.
(id, § 4.) To Mr. Bollenbacher’s knowledge, HELLWIG did plumbing work which
consisted of working with metal pipe and fixtures and did not do insulating work at the
Raychem facility in Menlo Park. (/d., 4916 & 7.)

IV. ARGUMENT

A. PLAINTIFFS Must Produce Evidence That a Triable Issue of Material Fact Exists.

PLAINTIFFS have failed to produce evidence that a triable issue of fact exists in
this case. There is no evidence that HELLWIG exposed RODAMER to any asbestos-
containing products.

The purpose of summary judgment “is to provide courts with a mechanism to cut
through the parties’ pleadings in order to determine whether, despite their allegations, trial
is in fact necessary to resolve the dispute.” Aguilar v. Adlantic Richfield Co. (2001) 25
Cal.4th 826, 843; see also, Casenas v. Fujisawa USA, Inc. (1997) 58 Cal.App.4th 101,
116; Watson v. State of California (1993) 21 Cal-App.4th 836, 840-841. Summary
judgment also serves to “expedite litigation by the elimination of needless trials.” Wyler v.
Firestone Tire & Rubber Co. (1979) 95 Cal.App.3d 621, 625. A defendant is entitled to
judgment as a matter of law when the defendant has shown that one or more elements of
plaintiffs’ cause of action cannot be established. C.C.P. § 437¢(O)(2).

The defendant needs to show that “plaintiff cannot establish at least one element of
the cause of action- for example, that the plaintiff cannot prove element X.” Aguilar,
supra at 853. However, in accordance with the standard set for summary judgment in
federal law, the defendant is not required to “conclusively negate an element of plaintiffs
cause of action.” /d.; see also Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal. App
4th 64, 70. Once it has been demonstrated that a cause of action cannot be established, the
burden shifts to the plaintiffs to set forth specific facts to prove the existence of a triable
issue. Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590.

It must be noted that the plaintiffs may not rely upon the mere allegations or denials

of its pleadings to show that a triable issue of material fact exists but instead shall set forth

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the specific facts showing that a triable issue of material facts exists as to the cause of
action or defense. Lopez v. University Partners (1997) $4 Cal.App.4th 1117, 1122.
B. PLAINTIFFS Fail to Prove Causation, a Necessary Element of Negligence.

To recover on a negligence theory, plaintiff must prove duty, breach, causation and
damages. Leslie G. v. Perry & Assoc. (1996) 43 Cal. App-Ath 472, 480; Rest.2d Torts, §§
281, 283, pp. 4, 12. Failure by plaintiff to prove any of these elements by a preponderance
of the evidence is fatal to recovery. Lineaweaver v. Plant Insulation Co. (1995) 31
Cal.App.4th 1409, 1414; Evid. Code § 115. In this case, PLAINTIFFS failed to meet their
burden and prove HELLWIG caused RODAMER'S injuries.

In California, the causation clement of negligence is satisfied when the plaintiff
establishes (1) that the defendant's breach of duty (his negligent act or omission) was a
substantial factor in bringing about the plaintiff's harm, and (2) that there is no rule of law
relieving the defendant of liability." Leslie G., supra, 43 Cal.App.4th at 481 (citing
Mitchell v. Gonzales (1991) $4 Cal.3d 1041, 1052.); Sindell v. Abbott Laboratories (1980)
26 Cal.3d 588, 597.) (Emphasis added.) Assumption, conjecture and speculation do not
satisfy the requirements a plaintiff must fulfill in order to show that a defendant caused an
injury. Moreover,

[wJhen the matter remains one of pure speculation or conjecture, or the
probabilities are at best evenly balanced, it becomes the duty of the court to
determine the issue in favor of the defendant as a matter of law.

Leslie G., supra, 43 Cal-App.4th at 484; see also Dumin v. Owens-Corning Fiberglass
(1994) 28 Cal.App.4th 650, 705. Specifically, proof of causation must be by substantial
evidence, farpke v. Lankershim Estates (1951) 103 Cal.App.2d 143, 145, and is "never
presumed." Id.

In Lineaweaver v. Plant Insulation Co. , supra, 31 Cal.App.th at 1414, the court

stated,
[clausation, as an element of negligence, includes both cause-in-fact
and proximate-legal causation . . . the former reflects the necessity of
a sufficient factual nexus between the negligent conduct and the injury
while the latter represents the legal determination encompassing all the

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ill-defined considerations of policy which go to limit once cause in fact
has been established.

The plaintiff in Lineaweaver worked at Standard Oil Refinery from 1950 to 1984,
The court determined that there was evidence Plant Insulation was a significant supplier of
asbestos products, performing 50 percent of the insulating work at the refinery in the 60s,
and that another major insulation contractor used Pabco and another product as "fill-in"
supplies which constituted 10 to 15 percent of the refinery's insulation installed by that
contractor. (/d. at 1419-20.) (Emphasis added.) The court held that, "while there was no
direct evidence that Linewcaver was exposed to Plant-supplied Pabco, the circumstantial
evidence was sufficient to support a reasonable inference of exposure." (Id. al 1420.)

This case is markedly different. PLATNTIFFS have not provided sufficient direct
or circumstantial evidence to support their claim that HELLWIG exposed RODAMER to
asbestos-containing products. At deposition, RODAMER testified HELLWIG was a
contractor on site during the construction of the chemical plant and pilot plant at Raychem
in the late 1960s. (SUF 4 & 5.) For the construction of the chemical plant, he recalls
HELLWIG "ran" the piping and “installed the machinery for the process" and Raychem
employees “connect{ed] to the piping that was overhead and [brought] it down to the
process itself." (SUF 6.) He recalls HELLWIG employees installing piping inside and
outside of the chemical plant. (SUF 7.) He recalls the piping was made out of steel. (SUF
8.) He further testified that he does not know whether HELLWIG insulated the piping
they installed. (SUF 9.)

‘When RODAMER was asked whether he ever saw IIELLWIG employees use any
thermal insulation, his reply was, “The insulation on the outside of the pipe, like | said, if
they used [thermal insulation], I'm not sure. It was either Douglas or Hellwig that did the
insulation on that pipe." (SUF 10.) He further testified that he just saw insulation but does.
not recall seeing any HELLWIG employees actually installing them. (SUF 11.) Other
than the piping, RODAMER cannot recall seeing HELLWIG employees using other

materials for the construction of the chemical plant. (SUF 12.)

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For the construction of the pilot plant at Raychem, RODAMER recalls HELLWIG
doing plumbing work. (SUF 13.) However, he does not recall what materials HELLWIG
used for the construction of the pilot plant. (SUF 14.) Other than the chemical plant and
the pilot plant, RODAMER does not recall HELLWIG during the construction of other
buildings at the Menlo Park facility of Raychem. (SUFIS.) He also does not recall
HELLWIG being at the Redwood City facility of Raychem. (SUF 16.) He also has no
information that the materials used by HELLWIG contained asbestos. (SUF 17.)

After RODAMER’s deposition, PLAINTIFFS’ counsel identified Al Taole as a
product identification and causation witness who will identify HELT.WIG as one of the
defendant to have exposed RODAMER to asbestos-containing materials. (SUF 18.) Al
Haole was a coworker of RODAMER during the new construction of Raychem Corp.'s
Mealo Park facility. (SUF 19.) In a declaration, Mr. Haole stated he recalls HELLWIG as
one of the contractors that worked on the new construction of Raychem's Menlo Park
facility. (SUF 20.) He also recalls HELLWIG to have installed underground pipes for the
main lines and overhead pipes for the equipment using materials that were made out of
steel, cooper and plastic to perform their work. (SUF 21 & 22.) He does not recall
HELLWIG supplying or installing any transite pipe. (SUF 23.) For the insulation work at
Raychem, Mr. Haole recalls most of the pipe insulation was installed by Raychem
employees with some being installed by an outside insulation contractor which he cannot
recall the name of. (SUF 24 & 25.) He does not recall seeing HELLWIG install any pipe
insulation, (SUF 26.)

Indeed, as declared by Glen Bollenbacher, current President of HELI.WIG who had
been in other capacities with HELLWIG since 1955, HELLWIG is a contractor that
performs plumbing work. (Declaration of Glen Bollenbacher, {41 &3.) Since insulation is
a specified skill performed by a different trade with a separate union, HELLWIG has never
entered into a contract to perform pipe insulation work and does not employ insulators.

(id., {4.) To Mr. Bollenbacher's knowledge, HELLWIG did plumbing work which

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consisted of working with metal pipe and fixtures and did not do insulating work at the
Raychem facility in Menlo Park. (Id., 4] & 7.) Thus, Mr. Bollenbacher knowledge
corroborates with RODAMER’s testimony and Mr. Haole’s declaration, Both
RODAMER and Mr. Haole recall HELLWIG as a contractor at Raychem’s Menlo Park
facility during its construction. (SUF 3, 4, 21.) They recall HELLWIG installing piping
using steel. (SUF 7 & 23.) They both did not recall seeing HELLWIG install any pipe
insulation. (SUF 8, 9, 10, 11 12 & 27.) Clearly, PLAINTIFFS have not presented any
direct or circumstantial evidence thal HELLWIG exposed RODAMER to asbestos-
containing materials.

Another significant case relevant to the instant action is Dumin v. Owens-Corning
Fiberglass Corp. (1994) 28 Cal.App.4th 650. In Dumin, the Court found that plaintiff's
long list of "some of the insulation" materials he used at Norfolk Naval Shipyard during
his tenure there from 1942 to 1975 was insufficient to show causation. (fd. at 653.) The
Court held, "{elven postulating the most generous application of a lenient causation
standard does not avail Dumin. There is simply insufficient evidence that OCF Kaylo was
aboard the Pocono. {the ship that he served aboard]." (d.) In conclusion, the Court
held that to find Dumin was exposed to OCF Kaylo would "require a stream of conjecture
and surmise." (Id. at 705.)

Similarly, in McGonnell v. Kaiser Gypsum, the decedent was a plumber’pipefitter
who worked at California Pacific Medical Center from 1975-1999. (McGonnell v. Kaiser
Gypsum(2002) 98 Cal.App.4th 1098, 1101.) At his deposition, Mr. McGonnell testified
that he never heard of Kaiser Gypsum, and could not recall working with or around Kaiser
Gypsum products, (/d.) He also testified that he had scen bags of Kaiser Cement in his
career, but "could not recall where he had seen the bags." (Jd.) Mr. McGonnell’s testimony
was insufficient to prove causation. (Id. at 1104.) The court noted that "McGonnell's
deposition excerpt is precisely the type of evidence specified by the Code of Civil
Procedure (Sec. 437c, subd. (b)) and our Supreme Court (Aguilar v. Atlantic Richfield Co.,

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(2001) 25 Cal.4th 826, 855.) as proper evidence to support a summary judgment motion."
(ld)

PLAINTIFFS’ failure to mect their burden and prove causation is even more clear
cut than McGonnell. Here, PLAINTIFFS contend RODAMER was exposed to asbestos-
containing products by HELLWIG when RODAMER worked at Raychem’s Menlo Park
and Redwood City in the 1960s and 1970s. (SUF 3.) However, RODAMER had
previously testified he does not recall HELLWIG at the Redwood City facility of
Raychem. (SUF 14.) With regards to the Menlo Park facility, he testified to have seen
HELLWIG installed only piping made out of steel and does not know whether HELLWIG
insulated the pipes they installed. (SUF 5, 6, 7, 8, 9, 10 & 12.) He also testified to have no
information that the materials used by HELLWIG contained asbestos. (SUF 15.)
Furthermore, PLAINTIFFS did not present any evidence, i.e. documents or witnesses, to
support their allegation that HELLWIG caused RODAMER to be exposed to asbestos.
Indeed, PLAINTIFFS’ product identification and causation witness, Al Haole, stated in his
declaration that he did not recall seeing HELLWIG install any pipe insulation. (SUF 26.)
He also only recalls HELLWIG installing piping using steel, cooper and plastic. (SUF 22.)
Thus, "[e]ven postulating the most generous application of a lenient causation standard” as
in Dumin would not avail PLAINTIFFS of sufficient evidence that HELLWIG caused
RODAMER's injury. The burden is on PLAINTIFFS to show that HELLWIG exposed
RODAMER to asbestos and thereby caused him injury. PLAINTIFFS have failed to meet
this burden,

V. CONCLUSION

PLAINTIFFS have produced no evidence that HELLWIG exposed RODAMER to.

any asbestos-containing materials, PLAINTIFFs' claims are insufficient to establish
causation under Dumin vy. Owens-Corning Fiberglass Corp. (1994) 28 Cal.App.4th 650
and Lineweaver v. Plant Insulation Co. (1995) 31 Cal. App.Ath 1409. This motion shifts

the burden to PLAINTIFFS to produce admissible evidence that a triable issue of material

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fact exists. In the absence of such evidence, HELLWIG's motion for summary judgment

should be granted.
iW
DATED: March _2\_, 2007

SELMAN BREITMAN LLP

KA-LO
ICE W. MAN
ttomeys for Defendant

RAY L. HELLWIG PLUMBING

‘MEMO OF P&ASTN SUPPORT OF DEF'T RAY 1. HELLWIG PLUMBING'S MST