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

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                                JEFFREY M. VUCINICH, ESQ. BAR#: 67906
STEPHEN V. HARRINGTON, ESQ. BAR#: 222064

CLAPP, MORONEY, BELLAGAMBA, VUCINICH, ELECTRONICALLY
BEEMAN & SCHELEY FILED
A PROFESSIONAL CORPORATION Superior Court of California,
L111 Bayhill Drive, Suite 300 County of San Francisco |
(650) 989-5400 (650) 989-5499 FAX JUN 23 2010
Clerk of the Court
Attorneys for Defendant BY: JUDITH NUNEZ
CONTRA COSTA ELECTRIC, INC, Deputy Clerk

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN FRANCISCO
LOUIS CASTAGNA, ASBESTOS
CASE NO, CGC-07-274230
Plaintiff,
MEMORANDUM OF POINTS AND
v. AUTHORITIES IN SUPPORT OF
DEFENDANT CONTRA COSTA
ASBESTOS DEFENDANTS (BP) As ELECTRIC, INC.’S MOTION FOR
Reflected on Exhibits B, B-1, C, D,H, I; SUMMARY JUDGMENT
and DOES 1-8500,
Defendants. Date: September 9, 2010
Time: 9:30 a.m.
Dept: 220

L INTRODUCTION

This case arises from plaintiff Louis Castagna’s (“plaintiff”) employment at various industrial
jobsites and refineries in the Northern California area, and elsewhere, and his alleged exposure to
asbestos from numerous sources at those facilities, Plaintiff contends that he was exposed to asbestos
containing materials while working at different locations by the actions of many defendants, including
defendant Contra Costa Electric, Inc. (“CCE”), However, viewing the evidence in a light most
favorable to plaintiff, it is clear that he cannot establish the required causal nexus between CCE’s
activities at any location or worksite and his alleged exposure to asbestos containing materials. Based

on the undisputed evidence garnered from plaintiff's responses to standard interrogatories, special

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CONTRA COSTA
ELECTRIC, INC.'S MOTION FOR SUMMARY JUDGMENT27

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interrogatories, and plaintiffs own deposition testimony, CCE is entitled to summary judgment as
a matter of law because plaintiff has no evidence showing that any of his asbestos exposure was the
result of any conduct by CCE,

TI. STATEMENT OF FACTS

Plaintiff Louis Castagna filed this lawsuit on June 6, 2007. [Separate Statement of Undisputed
Facts (hereinafter “SSUF”) 1]. Plaintiff’s complaint states causes of action against CCE for
negligence, strict liability, false representation, and premises owner/contractor liability. [SSUF 3].
CCE is an electrical contractor.

Plaintiff served responses to interrogatories pursuant to San Francisco Asbestos General Order
129. Plaintiff's responses to standard asbestos interrogatories, sets one and two, identify CCE as an
electrical contractor at Standard Oil, Richmond, CA ona one-day job on January 19, 1976. [SSUF 4].
They make no mention that CCE either handled or disturbed any asbestos containing materials in
plaintifi’s presence. [SSUF 5].

On January 28, 2009, in a special set of interrogatories propounded by CCE, plaintiff was
asked to identify all facts which supported his contention that he was exposed to asbestos by CCE.
[SSUF 6]. In response, plaintiff only provided generic allegations that CCE disturbed asbestos
containing materials in his presence at various locations. [SSUF 7]. Although plaintiff was asked to
describe by name, manufacturer, supplier, distributor, color, texture, consistency, shape, size, aud any
markings, that CCE allegedly exposed him to at any location, plaintiff failed to identify any asbestos
containing material with particularity, and merely incorporated his non-responsive answer to special
interrogatory no. 2. [SSUF 8]. Plaintiff provided a list of potential witnesses, including some that are
represented by plaintiffs counsel, however, could not provide any information that they may have
regarding any work CCE may have performed in plaintiff's presence. [SSUF 9]. Clearly, plaintiff
cannot identify any asbestos containing products from which he contends he was exposed to asbestos
by CCE’s actions. Plaintiff's deposition testimony underscores his lack of evidence linking CCE and

his alleged asbestos exposure.

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CONTRA COSTA
ELECTRIC, INC.’S MOTION FOR SUMMARY JUDGMENTPlaintiff was deposed by CCE attorneys on April 9, 2009. He testified that he recalled seeing
CCE as an outside contractor at Shell Oil, Standard Oil, Tosco refinery and UnoCal. [SSUF 10].
Plaintiff could not recall what year he saw CCE at Standard Oil, but believes that he was working for
Bechtel and Ehrhart at the time. [SSUF 11,12]. Plaintiff testified that it was difficult for him to
differentiate the jobs where he worked and where he saw CCE, [SSUF 13]. He could not say when
he saw CCE at Shell Oil, Martinez. [SSUF 14]. Plaintiff testified that he generally recalled seeing
CCE working on his jobsites, but could not specify the year, his employer or jobsite, including at
Tosco and Unocal. [SSUF 15, 16, 17}. He did not know the brand name, manufacturer, or supplier
of any of the materials CCE workers worked with in his presence at any jobsite. [SSUF 18]. Plaintiff
admitted that he has no information that any of the materials CCE employees worked with in his
presence, at any time or location, contained asbestos. [SSUF 19].

Following plaintiffs deposition, he served yerified supplemental/amended responses to
standard asbestos interrogatories, set one, on February 16, 2010. [SSUF 20]. Plaintiff's verified
responses identify CCE as an electrical contractor at Standard Oil, Richmond, CA on a one-day job
on January 19, 1976 and generally as electricians at Standard Oil, Shell Oil and Unocal. [SSUF 21].
Plaintiff make no mention that CCE either handled or disturbed any asbestos containing materials in
his presence. By plaintiffs own admission, he has no evidence that CCE caused him to be exposed
to any asbestos containing materials at any time.

Plaintiff has filed this lawsuit against various defendants, including CCE, alleging negligence,
strict liability, false representation, loss of consortium, and premises owner/contractor liability. [SSUF
3] For all the reasons set forth in this memorandum of points and authorities, CCE is entitled to
summary judgment.

TM. LEGAL ARGUMENT
A. CCEIS ENTITLED TO JUDGMENT AS A MATTER OF LAW BECAUSE NO
TRIABLE ISSUE EXISTS AS TO ANY MATERIAL FACT AND PLAINTIFF

HAS NO EVIDENCE OF ASBESTOS EXPOSURE FROM ANY CONDUCT BY
CONTRA COSTA ELECTRIC,

California Code of Civil Procedure Section 437c provides that a “motion for summary

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CONTRA COSTA
ELECTRIC, INC.’S MOTION FOR SUMMARY JUDGMENTjudgment shall be granted if all the papers submitted show that there is no triable issue as to any
material fact and that the moving party is entitled to judgment as a matter of law." CAL. CODE CIV.

PROC. §437c¢ (West 2010). The purpose of summary judgment is to provide courts with a mechanism
to cut through the parties' pleadings to determine whether, despite their allegations, trial is in fact
necessary to resolve their dispute. Aguilar v. Atlantic Richfield Company, 25 Cal. 4th 826, 843
(2001). A defendant moving for summary judgment meets its burden of showing that a cause of
action lacks merit if it can verify that one or more elements of the plaintiff's cause of action cannot
beestablished. CAL. CODECIV. PROC. § 437c(o)(1); see McGonnell v. Kaiser Gypsum Cony Inc.,
98 Cal.App.4th 1098, 1102-03 (2002). In such a case, the defendant bears an initial burden of
ptoduction to make a prima facie showing of the absence of a triable issue of material fact.
MeGonnell at 1103; Aguilar at 850.

Once the defendant meets its burden of production, the burden then shifts to the plaintiff to
make his or her own prima facie showing of the existence of a triable issue of fact. McGonnell at
1103, Aguilar at 850. However, “[t]here is a triable issue of material fact if, [and only if,] the
evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party
opposing the motion in accordance with the applicable standard of proof.” McGonnell at 1103,
quoting Aguilar at 850, Thus, summary judgment serves to "expedite litigation by avoiding needless
tials." Burton v, Security Pacific National Bank, 197 Cal.App.3d 972, 976 (1988). Although courts
have characterized summary judgment procedures as drastic, when a plaintiff presents no material
triable issues, summary judgmentis appropriate. Id, Importantly, for an issue to be “material,” it must
"relate to a claim or defense in issue which could make a difference in the outcome." Id. Moreover,

"[njo amount of factual conflicts upon other aspects of the case will affect the result..." Frazier,

Dame, Parrish & Hanawalt v, Boccardo, Blum, Lull, Niland. Teerlink & Bell, 70 Cal.App.3d 331, 338
(1977).

Here, CCE is entitled to summary judgment as a matter of law. Specifically, CCE has met
its initial burden, which then shifts the burden to Plaintiff to establish a triable issue of material

fact. However, Plaintiff cannot meet this shifted burden because he cannot sufficiently

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CONTRA COSTA
ELECTRIC, INC.’S MOTION FOR SUMMARY JUDGMENTNoo

demonstrate causation, nor can he provide a reasonable probability of CCE’s liability with regard
to his alleged asbestos exposure.
B. CONTRA COSTA ELECTRIC, INC, HAS MET ITS INITIAL BURDEN
OF SHOWING THAT THE ELEMENT OF CAUSATION DOES NOT
EXIST AS TO THIS DEFENDANT, THUS SHIFTING THE BURDEN

TO PLAINTIFF TO MAKE A PRIMA FACIE SHOWING OF THE
EXISTENCE OF A TRIABLE ISSUE OF MATERIAL FACT.

The First District Court of Appeals applied the burden shifting approach of Aguilar in Andrews
v. Foster Wheeler, 138 Cal. App. 4th 96 (2006). In that case, defendant Foster Wheeler moved for
summary judgment, which the trial court granted and the court of appeals upheld. Foster Wheeler
based its motion upon plaintiff Andrews’ questionable deposition testimony and factually devoid
responses to special interrogatories. Id. at 99. At deposition, Andrews made clear that he had no
personal knowledge of whether or not he was actually exposed to one of Foster Wheeler’s asbestos-
containing products. Id. at 103, Moreover, Foster Wheeler’s special interrogatories included, among
other requests, that plaintiff Andrews state all facts known to him regarding his exposure to a Foster
Wheeler product. Id. at 104. However, plaintiff Andrews’ responses contained little more than
conclusory, general allegations against Foster Wheeler. Id, Despite this, Andrews argued that the
defendant did not meet its initial burden of production. Nonetheless, the court held that plaintiff's
deposition testimony, combined with defendant’s special interrogatories and plaintiff’s “factually
devoid” responses thereto, sufficiently met Foster Wheeler’ s initial burden of production, thus shifting
the burden to plaintiff to make a prima facie showing, Id, at 107.

Similar to the scenario in Andrews, CCE has conducted extensive discovery in the instant case,
and plaintiff has merely provided vague, indistinct information in reply. See id. The evidence CCE
currently presents to this Court includes Plaintiff's deposition testimony, responses to standard
asbestos interrogatories, supplemental/amended responses thereto, and Plaintiff's responses to CCE’s
Special Interrogatories, which are discussed in detail. In response, Plaintiff has not produced any
witnesses, documents, or other substantive evidence in response to such discovery to support the claim

that his alleged exposure to asbestos-containing materials were in any way linked to the materials that

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CONTRA COSTA
ELECTRIC, INC.’$ MOTION FOR SUMMARY JUDGMENTCCE employees actually supplied, distributed, installed, removed, handled, or disturbed.
Furthermore, CCE has satisfied its burden under Aguilar v. Atlantic Richfield Co., 25 Cal.4th

826 (2001), because it has set forth that Plaintiff does not possess, and cannot reasonably obtain before
trial, any competent evidence that would support a cause of action against CCE. CCE’s extensive
discovery demonstrates that Plaintiff failed to properly assert the essential element of causation for
each cause of action, as supported by: (a) Plaintiffs responses to Standard Interrogatories and CCE’s
Special! Interrogatories; and (b) the deposition testimony of Plaintiff, which fails to implicate CCE in
any fashion. Because CCE’s discovery in this case was sufficiently comprehensive, and Plaintiff's
responses are so factually devoid, the cumulative effect of these findings infers that Plaintiff cannot
prove causation even upon a stringent review of the direct, circumstantial, and inferential evidence
contained in his interrogatory answers and deposition testimony. See Andrews, at 107, citing

Scheiding v. Dinwiddie Construction Co., 69 Cal. App. 4° 64, 76 (1999). In light of such evidence,

CCE has met its burden of production for summary judgement. Therefore, under McGonnell, Aguilar,

and Andrews, the burden shifts to Plaintiff to make his own prima facie showing of the existence of

a triable issue of material fact in this case.

C PLAINTIFF CANNOT SHOW THAT HE WORKED IN CLOSE
PROXIMITY TO ASBESTOS-CONTAINING MATERIALS SUPPLIED,
DISTRIBUTED, INSTALLED, REMOVED OR DISTURBED BY
CONTRA COSTA ELECTRIC, INC.

Plaintiff cannot meet his burden of coming forward with competent evidence that creates a
triable issue of fact on whether a causal nexus exists between his asbestos-related injuries and CCE’s
activities, To begin, a “threshold issue in asbestos litigation is exposure to defendant’s product.”
McGonnell, 98 Cal. App. 4" at 1103. “The plaintiff bears the burden of proof on this issue. Id. citing
Rutherford v, Qwens-lllinois, Inc., 16 Cal. 4" 953, 975-76 (1997); Lineaweaver v. Plant Insulation
Co., 31 Cal. App. 4" 1409, 1415-16 (1995). If there has been no exposure, there is no causation.”

MeGonnell, at 1103 (emphasis added). In this case, as described above, Plaintiff has provided no

evidence to support his claim that he was ever exposed to asbestos-containing materials that CCE

employees installed, removed, handled or disturbed. His deposition testimony and answers to CCE’s

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CONTRA COSTA
ELECTRIC, INC.’S MOTION FOR SUMMARY JUDGMENTinterrogatories completely lack any support justifying CCE’s involvement in this lawsuit. Therefore,
Plaintiff cannot prove causation against CCE, and thus does not meet its burden pertaining to summary
judgment.

Moreover, the mere possibility of CCE’s sporadic, tangential presence during Plaintiff's work

history does not create a triable issue of material fact. In Smith v. AC&S, Inc., 31 Cal.App.4th 77

(1994), for example, defendant AC&S appealed a judgment entered on a jury verdict for the plaintiff.

The plaintiff in Smith alleged that AC&S supplied, installed and/or removed asbestos-containing

products at a number of job sites where he worked, and that his exposure to asbestos resulted from
those products, Id, at 82. The evidence at trial was that Smith worked at the Standard Oil Refinery
in Richmond during a period of four months when AC&S might also have performed work at the
refinery. Id. at 85. Thus, the court reasoned that no evidence indicated that Smith had ever worked
in the vicinity of AC&S employees at that site. Id. at 88. In tura, the Court of Appeal held that there
was insufficient evidence that Smith was exposed to AC&S-installed asbestos insulation, and ordered
that judgment be entered in favor of AC&S. Id. at 97. The court declared, “even under the most
lenient causation standards, there must be proof that the defendant’s asbestos products or activities
were present at plaintiff's work site...Only rank speculation, not reasonable inferences, could support
a conclusion that Smith was exposed to AC&S-installed asbestos materials,” Id. at 89.

Similarly, in the instant case, not only has Plaintiff failed to prove that he was exposed to
harmful levels of asbestos due to some action or inaction on the part of CCE, he has provided
absolutely no competent evidence that CCE ever handled or disturbed asbestos containing materials
in his presence. Applying the Smith court’s rationale, the fact that CCE’s employees might have
possibly been present at a location where Plaintiff once worked does not, in and of itself, raise a triable
issue of fact. See id. Plaintiff has thus not presented any triable issues of fact as to this moving party,
and cannot do so because said proof, as opposed to contrived speculation, simply does not exist.

D. PLAINTIFF CANNOT ESTABLISH A REASONABLE MEDICAL

PROBABILITY OF CONTRA COSTA ELECTRIC, INC.’S LIABILITY

Lacking a causal nexus, Plaintiff'is necessarily unable to meet his burden of showing that there

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CONTRA COSTA
ELECTRIC, INC.’S MOTION FOR SUMMARY JUDGMENTis a reasonable medical probability based on competent expert testimony that CCE’s conduct was a
substantial factor in contributing to the aggregate dose of asbestos Plaintiff alleges to have inhaled or
ingested. See McGonnell, 98 Cal. App.4th at 1103; Hunter, 37 Cal.App.4th at 1288; Lineaweaver, 31

Cal.App.4th at 1416. Therefore, CCE is in no way a substantial factor in contributing to Plaintiff's
risk of developing an asbestos-related injury. Id.

Plaintiff originally filed this lawsuit on June 6, 2007, over three years ago. (SSUF No. 1) CCE
and Plaintiff have both propounded and responded to written discovery, and Plaintiff's deposition has
concluded. At this stage of litigation, Plaintiff should be able to precisely articulate the evidence in
his possession which links CCE as a cause of his asbestos exposure. Even following comprehensive
discovery, plaintiff cannot provide any evidence to support his claims against CCE. In short, plaintiff
has no competent evidence that could support a finding of liability on CCE’s part. Absent any
factually supportable claims, no issues of material fact are properly presentable to a trier of fact, and
CCE is entitled to summary judgment.

Vv. CONCLUSION

Based on the foregoing evidence presented by Defendant and due to the absence of a triable
issue of fact, CCE is entitled to summary judgment. Therefore, CCE respectfully requests that this
court grant this motion in its favor, and against Plaintiff Louis Castagna. Moving Defendant further
requests that this Court award CCE its costs of suit incurred herein, and any other such relief as the

Court finds just.

DATED: June 23, 2010 CLAPP, MORONEY, BELLAGAMBA,
VUCINICH, B (AN and <7

STEPHEN V. By
Attorneys for dant
CONTRA COSTA ELECTRIC, INC.

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CONTRA COSTA
ELECTRIC, INC.’S MOTION FOR SUMMARY JUDGMENT