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  • LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al ASBESTOS document preview
  • LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al ASBESTOS document preview
  • LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al ASBESTOS document preview
  • LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al ASBESTOS document preview
  • LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al ASBESTOS document preview
  • LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al ASBESTOS document preview
  • LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al ASBESTOS document preview
  • LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al ASBESTOS document preview 
						
                                
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                                SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

Document Scanning Lead Sheet
Sep-10-2010 2:22 pm

Case Number: CGC-07-274230
Filing Date: Sep-10-2010 2:20
Juke Box: 001 Image: 02967022
ORDER

LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS

001002967022

Instructions: -
Please place this sheet on top of the document to be scanned.BRAYTON®PURCELL LLP

ATTORNEYS AT LAW

RUSH LANDING ROAD

222

PO BOX 6169
NOVATO, CALIFORNIA 94948-6169

1555

(415) 8

—™ ™,

BRAYTON*%PURCELL LLP

Attorneys at Law SEP 1 0 2010

222 Rush Landing Road RI .
P.O. Box 6169 ee KOFY E COURT
Novato, California 94948-6169 . Deputy Clerk
(415) 898-1555

Tentative Ruling Contest Email: contestasbestosTR@braytonlaw.com

ALAN R. BRAYTON, ESQ., S.B. #73685
DAVID R. DONADIO, ESQ., S.B. #154436
ANNE T. ACUNA, ESQ., S.B. #245369

Attorneys for Plaintiff

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

LOUIS CASTAGNA, ASBESTOS
No. CGC-07-274230
Plaintiff,
ORDER DENYING DEFENDANT

SWINERTON BUILDERS’S MOTION
FOR SUMMARY JUDGMENT OR, IN
THE ALTERNATIVE, SUMMARY
ADJUDICATION

VS.

ASBESTOS DEFENDANTS (B%P)

RemSsemeemrerw

Date: September 10, 2010
Time: 9:30 a.m.

Dept.: 220, Hon. Harold E. Kahn
Trial Date: October 12, 2010
Action Filed: June 6, 2007

SWINERTON BUILDERS’s Motion for Summary Judgment or, in the Alternative,
Summary Adjudication, came on regularly for hearing on peplpmb et O 201 O,in, cod

Department 220, of the above-captioned Court. Piainigfha defendant, SWINERTON
ve

BUILDERS, appeared bytheircounselofrecont sb nitle! do te Coety deste

Having considered all papers and evidence submitted, and inferences reasonably
deducible therefrom, the Court determines that defendant SWINERTON BUILDERS’ Motion
for Summary Judgment is denied and its alternative motion for summary adjudication on the
sole issue of punitive damages is denied. Defendant failed to satisfy its burden of production
that plaintiff does not possess and cannot reasonably obtain evidence regarding plaintiff's

exposure to asbestos-containing materials attributable to defendant and defendant's liability for

KAlnjured\102298\pld\ord-SWINBU wpd 1 Tov
QROER DENYING DEFENDANT SWINERTON BUILDERS’S MOTION FOR SUMMARY JUDGMENT OR IN THE ‘ALTERNATIVE,
SUMMARY ADJUDICATIONN

punitive damages. ig 1S Cont

~

NN

s n the com

The evidence supporting plaintiff's allegations is set forth in Plaintiff's Separate

Rtatement of Disputed Material Facts as follows:

PLAINTIFF'S DISPUTED
MATERJAL FACTS

1. PlaintifNworked as a steamfitter at
Tosco Oil, Axon, California, in 1983. He
was employed\py Pacific Mechanical
Corporation an& Epic Instruments, Inc.

2. Plaintiff saw SWINERTON
BUILDERS’s employées working at Tosco
Oil, Avon, California, iM 1983. Plaintiff
knew that they worked fok SWINERTON
BUILDERS because he sa\y their company
logos on their uniforms, hard hats, and
trucks. Plaintiff also knew thet they worked
for SWINERTON BUILDERS because he
worked for SWINERTON BUIXDERS at
previous jobs, and become acquainted with
some of the SWINERTON BUILNERS’s
workers from other jobs.

3. Plaintiff was never asked during anY of
his deposition sessions about the detaflNof
the work he saw these SWINERTON
BUILDERS’s employees perforny ig Near
him at Tosco Oil in 1983.

4. Plaintiff worked next to SWINERTON
BUILDERS’: pipefitters ap@i laborers at
Tosco Oil in 1983. Theyvorked next to
each other on piping systems that were
adjacent to each otheyAnd interlocked.

5. Plaintiff worked within five feet of
SWINERTON BUILDERS’s pipefitters
removing and s¢raping Garlock-type and
Flexitallic-tyge, or spiral-wound, gaskets
from the pjfe flanges on steam lines. The
Garlock-Wpe and pioxitallic-type askets
that thySWINERTON BUILDERS’s
pipef(fters removed in plaintiff's presence
weg baked onto the surface of the pipe
flanges. When the pipefitters removed
these gaskets, they would come out in
pieces, leaving gasket residue on the

KAlnjured\102298\p!A ord-SWINBU.wpd_

SUPPORTING EVIDENC

1. Declaration of Loui ‘astagna, attached
as Exhibit A to the Adnfia Decl., at J 3,5.

Pepesition of Lows Castagna, attached as
Exhibit D to thg’Acufia Decl., Volume 11,
at 1100:3-13,

2. Declaytion of Louis Castagna, attached
as Exhipft A to the Acufia Decl., at q5.

Depésition of Louis Castagna, attached as

Eyhibit D to the Acufia Decl., Volume 10,
x 1080:22-1081:3.

3. Declaration of Louis Castagna, attached
as Exhibit A to the Acufia Decl., at § 6.

Declaration of Anne T. Acuiia, at 46

4. Declaration of Louis Castagna, attached
as Exhibit A to the Acufia Decl., at q7.

5. Deglaration of Louis Castagna, attached
as Exhikit A to the Acufia Decl., at 7 8.

TCV

|) ORDER DENYING DEFENDANT SWINERTON BUILDERS’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,
SUMMARY ADJUDICATIONCowon An FF WYN

flanges. The pipefitters used scrapers, wire
brushes, and b&ffing wheels on grinders to
remove that gasket residue. This would
take from a few Minutes to an hour,
depending on the Size of the pipe and the
gasket. SWINERTQN BUILDERS’s
removal of gasket myterial from flanges
created visible dust, Which plaintiff
breathed in because he\yever wore a make
or any other breathing photection while he
worked at Tosco Oil in Avon, California, in
83. >

6. Based on plaintiff's traintkg, experience, 6. Declaration of Youis Castagna, attached
and knowledge as a steamfittek for 30 years, as Exhibit A to Me Acufia Decl., at { 9.

he knows that the Garlock-typdand
Flexitallic-type gaskets that the
SWINERTON BUILDERS’ pipe
removed from steal lines in the 1988 job at
Tosco were installed at least two decades
before based on the physical appearane of
the bolts and fittings on the pipe flange
The bolts and fittings on the flanges that
SWINERTON BUILDERS’s employees
were working on were rusted and “frozen.
There is no way those bolts and fittings
could have been that rusty if they had been
opened up within two decades prior.

7. Plaintiff worked around SWINERTO 7. Declaration of Louis Castagna, attached
BUILDERS’s laborers at Tosco Oil in 4s Exhibit A to the Acufia Decl., at {J 7,
Avon, California, in 1983. These laboyers 1
were sweeping up all the dust and defris

and Flexitallic-type gaskets remg
SWINERTON’s pipefitters. Tie sweeping
of this debris created a visiblecloud of dust,
which plaintiff breathed in yécause he never
wore a mask or any other Yreathing
protection while he workéd at Tosco Oil in
Avon, California, in 1983.

8. Based on the tim# period, all the 8. Declaration of Charles Ay (“Ay Decl.”),
information regarding gasket materials in attached as Exhibit A to the Acufia Decl., at
high heat applicpfions, and the years of 49.

experience in gbating these materials in
residential apd industrial settings of
asbestos exfert Charles Ay, it is his opinion
that it is yhore likely than not that most
Garlock-type and Flexitallic type gaskets
used in steam high-heat applications prior
to 1984 were asbestos-containing.

Mt

K Alnjured\102298\pkford-SWINBU. 3 rcv

‘K.Ninjured\02298\pld\ord-SWINBU pd IN THE ALTERNATIVE,
ORDER DENYING DEFENDANT SWINERTON BUILDERS’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,
SUMMARY ADJUDICATIONSe NY DW BF WN

NN NY YM YN NN NY = S| ee Be ew ew ee
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9. Accordingly, it is more likely than not
that gaskets that the SWINERTON _
BUILDERS’s pipefitters were scraping off
of the flanges on steam high-heat lines and
the SWINERTON BUILDERS’s laborers
were cleaning and sweeping up were
asbestos-dgntaining. The scraping and
sweeping uprof these asbestos-containing
gaskets releastd respirable asbestos fiber
into the surrounding air. Thus, it is more
likely than not tha, Mr. CASTANGA was
exposed to respirable asbestos from

asl estos-containing gaskets which were
scraped from the pipe Ranges and swept up
by SWINERTON BUILNERS’s
employees.

10. Since the conclusion of
Mr. CASTAGNA’s deposition
matter, defendant, SWINERTO!
BUILDERS, never served on plai
supplemental discovery requests.

performed work at the Tosco Refinery in
1983.

12. SWINERTON BUILDERS admits that
it employed its own pipefitters at Tosco Oil
in the 1980s. These pipefitters would

install piping systems and maintain existing
piping systems at Tosco.

13. SWINERTON BUILDERS admitg
that its pipefitters removed and instal/éd
gaskets on pipe flanges at Tosco Oi/in the
1980s. These pipefitters would rexhove
gaskets that were stuck to the pipe flanges
with scrapers. One of the brands of gaskets
that they would scrape off is Garlock.
These Garlock gaskets woyfd come off in
pieces when they remove¢ them from the
pipe flanges. The Garlg
came off the flange ii
the floor.

it employed its Swn laborers at Tosco Oil in
the 1980s. Ty

cleaned up fle pipefitters’ dust and debris
on the grodind. These laborers used square-
point shévels and brooms to perform this
work.

K.AInjured\102298\pid\ord-SWINBU.wpet 4 tev
ORDER DENYING DEFENDANT SWINERTON BUILDERS’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,

SUMMARY ADJUDICATION

9. Declaration of Charles Ay (“Ay Decl.”),
attached as Exhibit B to the Acufia Decl., at
q9.

10. Declaratjén of Anne T. Acufia, at §[ 7.

. Deposition of Kerry Atkinson,
ERTON’s Person-Most-
Aowledgeable, attached as Exhibit C to
fhe Acufia Decl, at 76:23-77:15.

12. Deposition of Kerry Atkinson,
SWINERTON’s Person-Most-
owledgeable, attached as Exhibit C to
e Acufia Decl, at 81:18-82:2.

13. Deposition of Kerry Atkinson,
SWINBRTON’s Person-Most-
Knowledgeable, attached as Exhibit C to
the Acufia\Decl, at 82:7-15; 87:17-88-6;
88:11-24; 8&1.

14. Deposition of Kerry Ath
SWINERTON’s Person-Most
Knowledgeable, attached as Exhibit C to
the Acufia Decl, at 79:79:10-12; 80:24-81: 1;
85:13-14; 85:16-21; 86:5-8; 86:11.

son,oOo NY DHA BF BY =

S

15. Defendant’s Person-Most- 15. Deposition of Kerry Atkinson,
Knowledgeable, Kerry Atkinson, testified SWINERTON’s Person-Most-

that he worked as a pipefitter for Knowledgeable, attached as-Exhibit C to
Ss -ERTON BUILDERS beginning in the Acufia Decl, at 3):4<8.

1982.

16. SWINERTON BtHLDERS admits that
it held discussions about aSbestos S\
prevention and/or safety in 1982>
SWINERTON admits that it was we
known by at least 1982 that asbestos wast
hazard.

16. Deposition of Kerry Atkinson,
{NERTON’s Person-Most-

owledgeable, attached as Exhibit C to

the Acufia Decl, at 33:23-24; 34:1, 34:3-19.

17. SWINERTON had gsdfety program 17. Depositton.of Kerry Atkinson,
that protects SWINERTON’s employees SWINERTON’s Persan-Most-
om the hazards 6f asbestos well before Knowledgeable, on January21, 2010

82. attached as Exhibit C to the Acifia Decl, at
33:23-24; 34:1, 34:3-19.

IT IS HEREBY ORDERED that SWINERTON BUILDERS’s Motion for Summary
Judgment or, in the Alternative, Summary Adjudication, is DENIED.

Dated: Q \ysho
Co

4
Judge of the Superior Court

HAROLD KAHN

 \njured\102298\pkord-SWINBU. pd 5 Icy

ORDER DENYING DEFENDANT SWINERTON BUILDERS’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,
SUMMARY ADJUDICATION