Motion-Secondary: LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al

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                                Brybox
Hueo & PARKER
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Edward R. Hugo [Bar No. 124839]
P.M. Bessette [Bar No. 127588]
Josette D. Johnson [Bar No. 195977]

BRYDON HUGO & PARKER ELECTRONICALLY
135 Main Street, 20'" Floor FILED
San Francisco, CA 94105 Superior Court of California,
Telephone: (415) 808-0300 County of San Francisco
Facsimile: (415) 808-0333 SEP 03 2010
Attorneys for Defendant aclerk of the Co urt
SWINERTON BUILDERS Deputy Clerk

SUPERIOR COURT - STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION

LOUIS CASTAGNA, (ASBESTOS)

Case No. CGC-07-274230
Plaintiff(s),

vs. DEFENDANT SWINERTON BUILDERS’

REPLY BRIEF IN SUPPORT OF MOTION

ASBESTOS DEFENDANTS (B*P), ET AL., | FOR SUMMARY JUDGMENT OR, IN THE

ALTERNATIVE, SUMMARY

Defendants. ADJUDICATION

[Filed concurrently with Evidentiary
Objections and Proposed Order]

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

Dept.: 220

Judge: Harold E. Kahn

Action filed: June 6, 2007
Trial Date: October 12, 2010

L INTRODUCTION

Plaintiff's Opposition to the Motion for Summary Judgment filed by Defendant
Swinerton Builders (“Swinerton” or “Defendant”) fails to establish that a triable issue of
material fact exists with regard to Plaintiff's one and only cause of action against
Swinerton, namely Premises Owner/Contractor Liability.

Plaintiff's Opposition focuses solely on the issue of causation. However, simply
establishing that Swinerton may have disturbed asbestos containing gaskets five feet

1

DEFENDANT SWINERTON BUILDERS’ REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN
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away from Plaintiff is not sufficient to create a triable issue of material fact that Plaintiff
was exposed to, and breathed, any asbestos from the gaskets. Plaintiff fails to produce
any expert evidence from an industrial hygienist establishing that the miniscule amount
of asbestos contained in a gasket could travel the five feet, in the outside air, to Plaintiff's
location and be breathed by him. Thus Plaintiff cannot show causation — a required
element of his claim.

Moreover, Plaintiff fails to identify any evidence to support his claim for punitive
damages against Swinerton. Summary judgment in Swinerton’s favor is appropriate.
Alternatively, Swinerton requests summary adjudication of Plaintiffs claim for punitive

damages in its favor.

IL. ARGUMENT

1. Plaintiff Has Not Genuinely Controverted A Single Fact in Swinerton’s
Separate Statement of Undisputed Material Facts.

A party opposing summary judgment is required to describe the nature of the
dispute, and produce admissible “evidence that supports the position that the fact is
controverted.” (Cal. Rule of Court, Rule 3.1350(f); Code of Civ. Proc. § 437c(b).) Here,
Plaintiff has not controverted, or provided any evidence controverting, the facts set forth
in Swinerton’s Separate Statement. The basis for Swinerton’s motion for summary
judgment is that “Plaintiff has no evidence to support his claim that he was exposed to
asbestos as a result of any Swinerton activity.” California law is clear that a defendant
may rely on plaintiff's factually devoid discovery responses or deposition testimony to
prove that the plaintiff lacks evidence on an essential element of the cause of action.
(Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763 at 774, 780-781, Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4'" 826, 855; Andrews v. Foster Wheeler (2006) 138 Cal. App.4th 96,
106-07, Hunter v. Pacific Mechanical Corp. (1995) 37 Cal.App.4th 1282, 1287-90, Chaknova v.
Wilbur-Ellis (1999) 69 Cal. App.4th 962, 974-77; McGonnell v. Kaiser Gypsum (2002) 98
Cal.App.4th 1098, 1103-05.) Having satisfied its initial burden of showing that Plaintiff's
deposition testimony and discovery responses were factually devoid of evidence of

2

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causation against Swinerton, Plaintiff now has the burden of submitting admissible
evidence showing that there is a triable issue of material fact that Plaintiff was exposed to
asbestos from Swinerton. (Saelzler, supra, 25 Cal.4th at 774, 780-781; Aguilar, supra, 25
Cal.4* at 855; Andrews, supra,138 Cal.-App.4th at 106-07; Hunter, supra, 37 Cal.App.4th at
1287-90; Chaknova, supra, 69 Cal.App.4th at 974-77; McGonnell, supra, 98 Cal.App.4th at
1103-05.) The declarations of Plaintiff and Charles Ay do not constitute admissible

evidence that Plaintiff was exposed to asbestos from Swinerton.

2. Plaintiff’s Evidence Does Not Create A Triable Issue of Material Fact
Regarding Causation Because Plaintiff Does Not Submit Expert Opinion
That Asbestos Released From Gaskets Can Travel Five Feet To Plaintiff's

Breathing Zone.

In opposition to Swinerton’s motion for summary judgment, Plaintiff submits his

own declaration and the declaration of Charles Ay. Plaintiffs declaration states, in
essence, that he “worked within five feet of Swinerton Builders’ pipefitters removing and
scraping Garlock-type and Flexitallic-type, or spiral-wound, gaskets from the pipe flanges
on steam lines.” Plaintiff also states that Swinerton employees swept the debris from the
gaskets. To establish that the gaskets may have contained asbestos, Plaintiff submits the
declaration of Charles Ay. Swinerton contends that Ay is not qualified to establish that
the gaskets at issue contained asbestos, and has filed herewith separate objections to the
declaration of Charles Ay. (See Andrews, supra, 138 Cal.App.4"" at 108-111.) But assuming,
arguendo, that Mr. Ay is competent to opine that the gaskets contained asbestos, he is not
competent to opine that Plaintiff breathed in the dust from those gaskets.

The release of asbestos fibers from gasket material, and the aerodynamics of those
asbestos fibers once released, are beyond the common knowledge of lay persons and
requires expert testimony to establish. (See Andrews, supra, 138 Cal App.4"" at 108-113.)
Here, Plaintiff has failed to introduce any expert testimony from an industrial hygienist
establishing that scraping of gaskets results in the release of asbestos fibers, and that
those fibers, once released, could travel five feet to arrive in the breathing of zone of

Plaintiff and be breathed by him.

3

DEFENDANT SWINERTON BUILDERS’ REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN
THE ALTERNATIVE, SUMMARY ADJUDICATION1 Under Rutherford, Plaintiff must ultimately prove that he was exposed to asbestos
2 || disturbed by Swinerton, and that the exposure was to a reasonable medical probability a
substantial factor in contributing to any asbestos-related disease suffered by Plaintiff.
4 || (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4** 953, 974-977.) Here, simply stating
5 || that Plaintiff was five feet away from Swinerton employees removing gaskets does not
6 || create a triable issue of material fact regarding causation absent expert opinion from an
7 || industrial hygienist that Plaintiff could was exposed to asbestos from that activity.

8 3. Plaintiff Failed to Satisfy the Privette Elements.

9 In this case, Plaintiff is suing Swinerton, not as a manufacturer, supplier, or
10 || distributor of asbestos or an asbestos-containing product, but as a general contractor.’ As
11 || set forth in Swinerton’s moving papers, a Premises Owner/Contractor Liability claim
12 |) requires Plaintiff to prove that 1) Swinerton hired Plaintiff or Plaintiff's employer, 2)
13 || Swinerton retained the ability to exercise control over Plaintiff's work or the operative
14 || details or means or method of work; 3) Swinerton exercised the retained control; and 4)
15 |] the exercise of the retained control affirmatively contributed to Plaintiff's injuries.
16 || (Privette v. Superior Court (1993) 5 Cal.4th 689, see also Madden v. Summit View, Inc., (2008)
17 || 165 Cal.App.4th 1267; Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235, Zamudio v. City and
18 |) County of San Francisco (1999) 70 Cal.App.4th 445, Toland v. Sunland Housing Group, Inc.
19 || (1988) 18 Cal.4th 253; Hooker v. Dept. of Transportation (2002) 27 Cal.4th 198; Sheeler o.
20 || Greystone Homes, Inc., (2003) 113 Cal.App.4th 908.)

21 Plaintiff has approached Swinerton’s Motion as if it regarded a common cause of
22 || action for negligence. Plaintiff asserts that he worked five teet away from Swinerton
23 || employees who removed gaskets and swept up gasket debris. Plaintiff, however, does
24 || not allege common negligence against Swinerton. Instead, Plaintiff's sole cause of action
25 || requires much more than a showing that Swinerton employees may have caused Plaintiff

26 || to be exposed to asbestos. Plaintiff must show that Swinerton hired Plaintiff or Plaintiff's

27
28 " Plaintiff's Complaint contains several causes of action, but only asserts his Fifth Cause of Action for
Premises Owner/Contractor Liability against Swinerton. (See Plaintiff's Complaint, at Exhibit C)
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noo DEFENDANT SWINERTON BUILDERS’ REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN

San Prancieve, CA 24105 THE ALTERNATIVE, SUMMARY ADJUDICATION1]|| employer. Plaintiff has set forth no evidence to support this. Plaintiff's cause of action
2 || fails for this reason alone.

Moreover, Plaintiff has not established through discovery or through his
4 || deposition or Declaration that Swinerton retained and exercised control over him in his
5 || duties. Plaintiff's Declaration in Opposition to Swinerton’s Motion is completely void of
6 || any indication that Swinerton ever told Plaintiff how to do his job. In fact, the only
7 || mention of Swinerton employees refers to Swinreton employees who removed gaskets
8 || and who swept up debris from the gaskets. Simply alleging that Swinerton was the
9 || general contactor at a site does not shore up this lack of evidence. Plaintiff must
10 |) demonstrate that Swinerton retained control over Plaintiff's work and that it exercised
11 || this retained control. Plaintiff fails to show either.

12 Lastly, Plaintiff must show that the exercise of the retained control affirmatively
13 || contributed to his injuries. Without showing that Swinerton retained any control, or
14 || exercised that retained control, this element cannot be established.

15 Plaintiff has completely failed to address this portion of Swinerton’s Motion in his
16 || Opposition or Declaration. Without evidence to support any of the elements of Plaintiff's
17 || Premises Owner/Contractor Liability cause of action, Plaintiff's Complaint is subject to
18 |) summary judgment.

19 4, Plaintiff Failed to Establish the Kinsman Elements.

20 As set forth in Swinerton’s moving papers, under Kinsman v. Unocal Corporation
21 || (2005) 37 Cal.4th 659, when a injury is due to a preexisting hazardous condition—such as
22 || the presence of asbestos—a plaintiff must show that 1) the contractor (Swinerton) knew
23 || or should have known of the concealed, preexisting hazardous condition on the premises,
24 || 2) that the plaintiff's employer (Scott Company) did not and could not have reasonably
25 || ascertained the hazardous condition, and 3) the contractor failed to warn the employer of
26 || the hazard. (Kinsman v. Unocal Corporation (2005) 37 Cal.4th 659, 675.)

27 Plaintiff failed, through his deposition testimony, his written discovery responses,

28 || as well as his Opposition and attached Declaration, to provide evidence that each of the

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‘2 TLOCR DEFENDANT SWINERTON BUILDERS’ REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN

San Prancieve, CA 24105 THE ALTERNATIVE, SUMMARY ADJUDICATION1 || Kinsman requirements have been met. In fact, Plaintiff's employer, Pacific Mechanical
2 || Corporation, was an established contractor during this period of time and would likely
have more knowledge and information related to the types of materials (gaskets) it
4 || removed and installed at Plaintiff's worksites. There is further no evidence to suggest
5 || that anyone at Swinerton had greater knowledge of the composition of these materials or
6 || possible hazards associated with cleaning them up than Plaintiff's employers had. Even
7 || if there were, there is no evidence to suggest that Pacific Mechanical did not know or
8 || could not have known the same information. Lastly, there is no evidence to show that
9 || despite having superior knowledge, Swinerton chose to conceal the knowledge from
10 || Scott Company. Not a single element is satisfied.

I In his Opposition, Plaintiff has failed to address the evidentiary insufficiencies
12 |) regarding his only cause of action for Premises Owner/Contractor Liability. This cause of
13 || action therefore should be summarily adjudicated in Swinerton’s favor. Since Plaintiff has
14 || abandoned his claim and prayer for punitive damages against Swinerton, summary

15 |) judgment of Plaintiffs entire Complaint is appropriate.

16
5. Plaintiff Has Offered No Clear And Convincing Evidence To Show That
17 Swinerton Acted With Malice To Support Punitive Damages.
18 Although Plaintiff has not expressly abandoned his claim for punitive damages

19 || against Swinerton, he has put forth no admissible evidence to support his claim. To

20 || defeat summary adjudication of a punitive damages claim, Plaintiff must present clear
21 || and convincing evidence that defendant acted with malice. The United States Supreme
22 || Court has held that the substantive evidentiary standard of proof that would apply in a
23 || trial on the merits must be taken into account when the trial court determines a motion
24 || for summary judgment. (Anderson v. Liberty Lobby, Inc. (1986) 477 U.S. 242, 252.) Thus,
25 || implicit in the clear-and-convincing-evidence standard for certain claims is a
26 || “concomitant duty on the judge to consider the applicable burden when deciding whether

27 || to send a case to the jury.” (Id. at 254.) The Supreme Court further instructed:

28
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‘2 TLOCR DEFENDANT SWINERTON BUILDERS’ REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN

San Prancieve, CA 24105 THE ALTERNATIVE, SUMMARY ADJUDICATION1 Thus, in ruling on a motion for summary judgment, the judge must

view the evidence presented through the prism of the substantive

2 evidentiary burden. This conclusion is mandated by the nature of

this determination. The question here is whether a jury could

reasonably find either that the plaintiff proved his case by the

quality and quantity of evidence required by the governing law or
et ly

4 that he did not. er a jury could reasonably find for either
party, however, cannot be defined except by the criteria governin:

5 what evidence would enable the jury to find for either the plainti.
or the defendant: It makes no sense to say that a jury could

6 reasonably find for either party without some benchmark as to
what standards govern its deliberations and within what

7 boundaries its ultimate decision must fall, and these standards and
boundaries are in fact provided by the applicable evidentiary

8 standards.

9 (Id. at 254-255, emphasis added.)

10

California courts have adopted and applied the clear and convincing standard to

personal injury tort cases. For example, in Hoch v. Alfied-Signal, Inc. (1994) 24 Cal. App.4"

R 48, plaintiffs brought a products liability, negligence and punitive damages claims against
8 a seat-belt manufacturer, alleging that decedent was killed in a motor vehicle accident
4 because the seatbelt buckle had a design defect of inertial delatching upon rapid
6 acceleration or deceleration of the latch housing. Following trial, the Court granted
"6 defendant's nonsuit on the punitive damages claim, stating that where the substantive
"7 standard is clear and convincing evidence, “this more rigorous standard also applies on
8 review of a nonsuit granted, i.e., to demonstrate error, the plaintiff-appellant must show
9 the existence of clear and convincing evidence to support a finding of malice, fraud or
0 oppression.” (fd. at 59.) The court went on to note that the claim for punitive damages
a must be evaluated in the light of the higher burden of proof, clear and convincing
2 evidence, analogizing to the criminal law’s requirement of proof beyond a reasonable
3 mind: “a motion for nonsuit in a case requiring clear and convincing evidence should be
“4 granted only if the trial court determines that no reasonable jury could find the plaintiff
5 has presented clear and convincing evidence.” (Id. at 59-60.) The Hoch court specifically
°6 discussed and relied upon the United States Supreme Court's decision in Anderson.
7 While Hoch addressed the issue of clear and convincing evidence in the procedural
28
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San Prancieve, CA 24105 THE ALTERNATIVE, SUMMARY ADJUDICATIONBrybox
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context of a nonsuit (which has a similar standard as summary judgment), Lackner ov.
North (2006) 135 Cal.App.4" 1188, decided summary judgment in favor of defendant
where Plaintiffs, injured in a skiing collision, lacked clear and convincing evidence that
defendant acted with the requisite malice. In Lackner, the Court discussed the quantum of
evidence required to prevail on a punitive damages claim. As pointed out by the Lackner
court, in 1980 and again in 1987, the legislature amended Civil Code section 3294 to
include the definition of malice, based upon conscious disregard of the plaintiff's rights,
to require proof that the defendant's conduct is “despicable” and “willful.” (Lackner,
supra, 135 Cal.App.4"° at 1211.) “The statute’s reference to “despicable conduct”

represents “a new substantive limitation on punitive damages awards.”” (Lackner, supra,
135 Cal. App.4" at 1211, citing College Hospital, Inc. v. Superior Court (1994) 8 Cal.4"* 704,
725.) Finally, Lackner notes that the 1987 amendments also increased to burden of proof
to clear and convincing evidence that defendant acted with malice or oppression. (Id.)
“That standard “requires a finding of high probability ... “so clear as to leave no
substantial doubt”, “sufficiently strong to command the unhesitating assent of every
reaonsable mind.”” (Lackner, supra, 135 Cal.App.4" at 1211, citing In re Angela P. (1981) 28
Cal.3d. 908, 919.)

Here, Plaintiff has not offered a single piece of evidence, let alone clear and
convincing evidence, to suggest that Swinerton acted with malice. Rather, Plaintiff's
opposition admits that Swinerton during the relevant time period, Swinerton was holding
safety meetings advising of the hazards of asbestos and that Swinerton had a safety
program to protect its own employees as well as the general public. This evidence
suggests just the opposite of malice — it suggests that Swinerton was making reasonable
and good faith efforts to protect its employees and those around it from the hazards of
asbestos. Based on this evidence, no reasonable jury could find clear and convincing
evidence that Swinerton acted with malice while engaged in work at Tosco in 1983.

Thus, the Court should grant Swinerton’s motion for adjudication of Plaintiffs punitive

damages claim.

8

DEFENDANT SWINERTON BUILDERS’ REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN
THE ALTERNATIVE, SUMMARY ADJUDICATION1}| Vv. CONCLUSION AND PRAYER

2 Plaintiff has failed to present any evidence to demonstrate that any activity by
3 || Swinerton caused Plaintiff to be exposed to asbestos. Nor have Plaintiff's produced any
4]| evidence to satisfy the elements of their sole cause of action for Premises
5 || Owner/Contractor Liability. Swinerton therefore requests that this Court grant summary
6 || judgment in Swinerton’s favor as to Plaintiffs entire Complaint. In the alternative,
7 || Swinerton requests that this Court summarily adjudicate Plaintiff’s claim for punitive
8 || damages in Swinerton’s favor.

9 || Dated: September 2, 2010 BRYDON HUGO & PARKER

MW By: /s/ Josette D. Johnson
Edward R. Hugo

12 P.M. Bessette

Josette D. Johnson

13 Attorneys for Defendant
SWINERTON BUILDERS

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Hueo & PARKER

135 MAIN STREET
‘2 TLOCR DEFENDANT SWINERTON BUILDERS’ REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN

Sun Franisee, CA 24105 THE ALTERNATIVE, SUMMARY ADJUDICATIONCastagna, Louis (Brayton 536)
San Francisco County Superior Court Case No. CGC-07-274230
LexisNexis Transaction No. 33015114

PROOF OF SERVICE

lam a resident of the State of California, over the age of 18 years, and not a
party to the within action. My electronic notification address is

service@bhplaw.com and my business address is 135 Main Street, 20" Floor, San
Francisco, ¢ alifornia 94105. On the date below, I served the following:
DEFENDANT SWINERTON BUILDERS’ REPLY BRIEF IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY
ADJUDICATION;
DEFENDANT SWINERTON BUILDERS’ EVIDENTIARY OBJECTION IN

SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE
ALTERNATIVE, SUMMARY ADJUDICATION;

on the following:

BRAYTON PURCELL LLP ALL DEFENDANTS
222 Rush Landing Road (See attached service list)
Novato, CA 94945

Fax: (415) 898-1247

X By transmitting electronically the document(s) listed above as set forth
on the electronic service list on this date before 5:00 p.m.

I declare under penalty of perjury that the above is true and correct.
Executed on September 3, 2010, at San Francisco, Califorpia.

SABRINA STEWART

PROOF OF SERVICE