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

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                                ATTORNEYS AT LAW
222 RUSH LANDING ROAD
POBOX 6169
NOVATO, CALIFORNIA 94948-6169

BRAYTON?PURCELL LLP

(415) 898-1553

coo em NAD wh FB Bw! NH

ALAN R. BRAYTON, ESQ., 8.B. #73685
DAVID R. DONADIO, FSO.. S.B2#154436

ANNE T. ACUNA, BSQ., S'B. #245369 ELECTRONICALLY

BRAYTONSPURCELL LLP '
Attorneys at Law ' FILED
222 Rush Landing Road : Superior Court of California,
P.O. Box 6169 . County of San Francisco
Novato, California 94948-6169 i . AUG 25 2010
(415) 898-1555 : Clerk of the Court
Tentative Ruling Contest Email: contestasbestosTR@braytonlaw. COM BY. ALISON AGBAY
Deputy Clerk
Attomeys for Plaintiff
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

‘ a

LOUIS CASTAGNA, ) ASBESTOS
) No. CGC-07-274230
Plaintiff, : >

t PLAINTIFF'S MEMORANDUM OF
vs. ‘ POINTS AND AUTHORITIES IN

t ) OPPOSITION TO DEFENDANT
ASBESTOS DEFENDANTS (BP) ) SWINERTON BUILDERS’S MOTION

FOR SUMMARY JUDGMENT OR, IN

i THE ALTERNATIVE, SUMMARY

: ADJUDICATION

Date: September 9, 2010

: Time: 9:30 a.m.

i Dept.: 220, Hon. Harold E. Kahn

: Trial] Date: October 12, 2010

i Action Filed: June 6, 2007

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PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT SWINERTON BUILDERS S
MOTION FOR SUMMARY JUDGMENT OR, IN HE ALTERNATIVE, SUMMARY ADJUDICATIONme

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TABLE OF CONTENTS
I INTRODUCTION 0.00 cee cece cence ene net ee eee eneee 1
i. STATEMENT OF FACTS 00.000 ccc cence center eteeeenes 1
Hk LEGAL ARGUMENT 20.00 cece ete ete n betes 4
A THE SCOPE OF SWINERTON’S MOTION JS LIMITED TO THE
ISSUES PRESENTED IN ITS SEPARATE STATEMENT OF :
UNDISPUTED MATERIAL PACTS 220... 00.0 ccc cece eee ee ees 4
B. DEFENDANT SWINERTON FAILED TO SHIFT ITS BURDEN OF
PROOF AS IT CONDUCTED LIMITED DISCOVERY BY NOT
THOROUGHLY EXAMINING PLAINTIFF AT HIS DEPOSITION
AND BY NOT PROPOUNDING SUPPLEMENTAL DISCOVERY
Cc. TRIABLE ISSUES OF MATERIAL FACT EXIST REGARDING
MR. CASTAGNA’S EXPOSURE TO ASBESTOS FOR WHICH
SWINERTON IS LIABLE.. 0.20.0 ence enone 9
1. The Declaration of Mr. CASTAGNA is Admissible Evidence ...... 10
D. PUNITIVE DAMAGES AGAINST SWINERTON ARE WARRANTED .. 11
CONCLUSION 200 c ccc cen tn Eden cette t eee ee 13
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PLAINTI IORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT SWINER TON BUILDERS’S:
MOTION TOR SUMMARY JUDOMENT ‘OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONtt

(Oo RW NA WD A HN

10

TABLE OF AUTHORITIES.

CASE!

Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826

Black v, Sullivan (1975) 48 Cal. App.3d 557 . vob vcceeeeeeteneteverees Lente eae
Bunzel v, Am. Academy of Orthopedic Surgeons (1980) 107 Cal App.3d 165 ............ 5
Chevron U.S.A., Inc. v. Super, Ct, (Cobb (1992) 4 Cal_App.4th $44 .0.0... ee 7
Conn v. National Can Corp. (1981) 124 Cai-App.3d 630 20.00.00 cae eee eee 4
D’Amico y. Board of Medical Examiners (1974) 11 Cal.3dJ ...000.0..0.00...002... 10, 1]
Fleet v. CBS, Inc. (1996) 50 Cal.App4th 1911 2.20....5. hates eee eee eee ase ee eae 4.
Furla v. Jon Douglas Co. (1998) 65.Cal App.4th 1069 2.00... 2. : Leet ee eee feces 9
Hayman v, Block (1986) 176 Cal App.34 629.0000... ...0ccccceees Oo eeveeeeeees 6
Herber v. Yaeger (1967) 251 Cal-App.2d 258 20.002. 10
Hunter v. Pacific Mechanical Corp. (1995) 37 Cal_App.4th 1282 000000002. 6
Joslin v. Marin Municipal Water District (1967) 67 Cal.2d 132 00. ee eee 10
Juge-v. County of Sacramento (1993) 12 Cal. App.4th $9 0.0.00 4
Niederer v. Ferreira (1987) 189 Cal. App.3d 1485 0000.00 ccc cece cece eee il
North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal. App.4th 22.0.0... 5
San Diego Watercrafts, Inc. v, Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308 1... 4
Scalf v. D.B. Log Homes. inc, (2005) 128 Cal.App.4th 1510 ....00.0..0...0..00005 10,11
Scheiding v. Dinwiddie (1999) Cal App.4th 64 2.20.02 7, 9.11
Walsh v. Walsh (1941) 18 Cal.2d 439.000. butte et eres eeee 10
Weber v. John Crane, inc. (2006) 143 Cal. App.4th 1433 2.0.0... ccs eee 7-9,.11, 12
STATUTES

California Code of Civil Procedure § 437e 0.00 ce erence ete renee 4
California Code of Civil Procedure § 437e(a) 000. cee 4
California Code of Civil Procedure § 437c(b) .. 000. eens 6
California Code of Civil Procedure § 437c(b\(1) ....--.-.- Lecce nee eee eee e teen eee ee 4
K Seiad 02208iplKope SWINE pd ii yey

PLAINTIFP'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT SWINERTON BUH.DERS’S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADRIDICATIONOo CoC ND HW & WH

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TABLE OF AUTHORITIES (Cont’d.)

STATUTES (cont’d.)
California Code of Civil Procedure § 437¢(c)

California Code of Civil Procedure § 437¢(n)(o)

California Code of Civil Procedure S437 COM 2) oo cee eee eee eee

MISCELLANEOUS
Restatement of Torts § 908 20.02.20 eee eee teens 12
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PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT SWINERTON BUILDERS'S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONL
INTRODUCTION

The only issues raised by defendant SWINERTON BUILDERS (“SWINERTON”) in its
motion are that (1) Plaintiff cannot identify SWINERTON employees performing work at any
Jobsite where plaintiff also worked; (2) Plaintiff has no admissible evidence to support his claim
that SWINERTON exposed. him to asbestos, and (3) Plaintiff's claim for punitive damages has
no merit because there is no “clear and convincing evidence” that SWINERTON’s conduct
constitutes “malice,” “oppression,” “fraud,” or “despicable conduct.” However, defendant
fatally relies solely on Plaintiff's Response to Special Interrogatories, Set One which were
served prior to the conclusion of plaintiff's deposition and plaintiff’s deposition testimony.
wherein he was not thoroughly examined about the work he saw SWINERTON’s
employees performing near him. Defendant simply has not made an affirmative showing that
plaintiff is unable to prove his case by any means.

Even if defendant has somehow shifted the burden to plaintiff, as presented herein,
plaintiff does have evidence that the SWINERTON employees Mr. CASTAGNA worked next
to at Tosco in 1983 removed and scrapped off asbestos-containing gaskets on steam lines and
that subsequently SWINERTON’s laborers swept up these gasket materials in
Mr. CASTAGNA's presence. Additionally, defendant’s own Person-Most-Knowledgeable
confirms that SWINERTON worked in Tosco in the 1980s, and that their work there involved
scraping of Garlock-brand gaskets, just as Mr. CASTAGNA recalls. Thus, SWINERTON’s
Motion for Summary Judgment, or in the Alternative, Summary Adjudication, must be denied.

i.
STATEMENT OF FACTS

Plaintiff LOUIS CASTAGNA worked as a steamfitter at Tosco Oil in Avon, California,
in 1983, He was employed by Pacific Mechanical Corporation and Epic Instruments, Inc.
(Plaintiff's Separate Statement No. 1.) Plaintiff saw SWINERTON’s employees working at
Tosco Oil in Avon, California, in 1983. (PSS No. 2.) Plaintiff could identify that these workers

worked for SWINERTON because he saw theit company logos on their uniforms, hard hats,

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PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT SWINERTON BUILDERS’S.
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONCON RH FF BW YM He

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and trucks. (Id.) Plaintiff also knew that they worked for SWINERTON because he worked for
SWINERTON at previous jobs, and became acquainted with some of the SWINERTON
workers from other jobs. (Id.) Plaintiff worked next to SWINERTON’s pipefitters and laborers
at Tosco Oil in 1983. (PSS No. 4.) They worked next to each other on piping systems that
were adjacent to each other and interlocked. (Id.)

Plaintiff worked within five feet of SWINERTON’s pipefitters removing and scraping
Garlock-type and Flexitallic-type, or spiral-wound, gaskets from the pipe flanges on steam
lines. (PSS No. 5.) The Garlock-type and Flexitallic-type gaskets that SWINERTON’s
pipefitters removed in plaintiff’s presence were baked onto the surface of the pipe flanges:. (Id.)..
When the pipefitters removed these-gaskets,.they would come out in pieces, leaving gasket o
residue on the flanges. (Id.) The pipefitters used scrapers, wire brushes, and buffing wheels.on
grinders to remove that gasket residue. (Id.) This would take from a few minutes to an hour,
depending on the size of the pipe and the gasket. (Id.) SWINERTON’s removal of gasket
material from flanges created visible dust, which Mr. CASTAGNA breathed in because he
never wore a mask or any other breathing protection while he worked at Tosco Oil in Avon,
California, in 1983. (Id.)

Based on Mr. CASTAGNA'’s training, experience, and knowledge as a steamfitter for
30 years, he knows that the Garlock-type and Flexitallic-type gaskets that SWINERTON’s
pipefitters removed from steam pipes in the 1983 jab at Tosco were installed at least two
decades before based on the physical appearance of the bolts and fittings on the pipe flanges.
(PSS No. 6.) The bolts and fittings on the flanges that SWINERTON’s employees were
working on were rusted and “frozen.” (Id.) There is no way those bolts and fittings could have
been that rusty if they had been opened up within two decades prior. (Id)

Mr. CASTAGNA also worked around SWINERTON’s laborers at Tosco Oil in Avon,
California, in 1983. (PSS No. 7.) These laborers were sweeping up all the dust and debris left
by all the trades on the ground. (Id.) This dust and debris included the Garlock-type and
Flexitallic-type gaskets removed by SWINERTON’s pipefitters. ([d.) The sweeping of this

debris created a visible cloud of dust, which plaintiff breathed in because he never wore a mask

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PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT SWINERTON BUILDERS’S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONSe we NAW eB wD

» necessarily inhaled» (PSS-Nos. 8 and 9.) 2... +

or any other breathing protection while he worked at Tosco Gil in Avon, California, in 1983.
(id.)

Charles Ay, certified asbestos consultant and former insulator by trade confirms that the
Garlock-type and Flexitallic-type gaskets described by Mr. CASTAGNA, which
SWINERTON’s pipefitiers removed from high heat lines and was swept by SWINERTON’s
laborers In Mr. CASTAGNA’s presence, more likely than not contained asbestos. (PSS No. 8}
SWINERTON's employees removing and sweeping of asbestos-containing gaskets in close

proximity to Mr. CASTAGNA released respirable asbestos fibers that Mr. CASTAGNA

SWINERTON’s Person-Most-Knowledgeable, Kerry Atkinson, testified.that:
SWINERTON performed work at Tosco Oil in Avon, California, in 1983. (PSS No.1 1).
SWINERTON employed its own pipefitters at Tosco Oil in the 1980s. (PSS No. 12.) These
pipefitters would install piping systems and maintain existing piping systems at Tosco Oil.
(PSS No. 12.) SWINERTON’s pipefitters removed and installed gaskets on pipe flanges at
Tosco Oil in the 1980s. (PSS No. 13.) These pipetitters removed gaskets that were stuck to the
pipe flanges with scrapers. (Id.) One of the brands of gaskets that SWINERTON’s pipefitters
scraped off is Garlock. (Id.) These Garlock gaskets would come off in pieces when they
removed them from the pipe flanges. (Id:} The Garlock gaskets that came off the flanges in
pieces would fall to the floor, (Id.) SWINERTON also employed its own laborers at Tosco Oil
inthe 1980s. (PSS No. 14.) These laborers swept and cleaned up the pipefitters’ dust and
debris on the ground. (Id.) These laborers used square-point shovels and brooms:to-perform
this work. (Id:)

Mr. Atkinson testified that he worked as a pipefitter for SWINERTON beginning in
1982, (PSS No. 15.) Mr. Atkinson testified that SWINERTON held discussions about asbestos
prevention and/or safety while he was employed by SWINERTON. (PSS No. 16.) The first
tirne one of these discussions about asbestos occurred was when Mr. Atkinson first started
working for SWINERTON in 1982. did.) Mr. Atkinson also testified that it was well known in
1982 that asbestos was a hazard. (Id.) Finally, Mr. Atkinson testified that SWINERTON had a

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PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION 10 DEFENDANT SWINERTON BUILDERS'S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONsafety program that protected SWINERTON’s employees and the general public, well before he
began to work for SWINERTON in 1982. (PSS No. i7.) ,
HL.
LEGAL ARGUMENT
A. THE SCOPE OF SWINERTON’S MOTION IS LIMITED TO THE ISSUES

PRESENTED IN ITS SEPARATE STATEMENT OF UNDISPUTED
MATERIAL FACTS

California Code of Civil Procedure § 437c imposes “on the moving party both a
pleading requirement and a substantive burden in order to prevail on a motion for suramary

judgment.” (luge v. County of Sacramento (1993) 12 Cal-App.4th 59, 66.) “[TJhe initial duty

to-define the issues presented by the complaint and to challenge them factually.is on the-.-
defendant who seeks a summary judgment.”: (Conn v. National Can Corp, (1981 ) 124.
Cal.App.3d 630, 638.). This duty requires a defendant seeking summary judgment to set forth in
its moving papers “with specificity (1) the issues tendered by the complaint or answer which are
pertinent to the summary judgment motion and (2) each of the grounds of law upon which the
moving party is relying in asserting that the action has no merit or there is no defense to the
action.” (huge, 12 Cal.App.4th at 67.)

Specifically, “[t]he Separate Statement of Undisputed Material Facts in support of a
motion must separately identify each cause of action, claim, issue of duty or affirmative
defense, and cach supporting materia! fact claimed to be without dispute with respect to the
cause of action, claim, issue of duty, or affirmative defense.” (Cal. Rules of Court, Rule 342{d),
emphasis added.) “The due process-aspect of the separate statement requirement is self-evident,
to inform the opposing party of the evidence to be disputed to defeat the motion.” (San Diego
Watercrafis. Inc. v. Wells Fargo Bank, N.A. (2002) 102.Cal.App.4th 308, 316.) “Failure to
comply with this requirement of a separate statement may in the court’s discretion constitute a
sufficient ground for denial of the motion.” (C.C.P. § 437c(b)(1)) “Facts stated elsewhere
{other than in the separate statement} need not be considered by the court.” (Fleet v. CBS, Inc.
(1996) 50 Cal.App.4th 1911, 1916.3} Due process further requires the Court to exclude any
evidence which was not timely served in accordance with C.C.P. § 437c(a). (San Diego

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PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT SWINERTON BUILDERS’S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONWatercrafts, Inc., 102 Cal App.4th at 316.) “Thus, when the ‘fact’ is not mentioned in the

separate statement, it is irrelevant that such fact might be buried in the mound of paperwork
filed with the court, because the statutory purposes are not furthered by unhighlighted facts.”
(North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal. App.4th 22, 31.)

Here, the only issues raised by defendant SWINERTON BUILDERS (“SWINERTON”)
in its motion are that (1) Plaintiff cannot identify SWINERTON employees performing work at
any jobsite where plaintiff also worked; (2) Plaintiff has no admissible evidence to support his
claim that SWINERTON exposed him to asbestos, and (3) Plaintiff's claim for punitive

-damagesihas‘nio merit because there is‘no “clear and.convincing evidence”.that.S WINERTON?s

2 6G

conduct-constitutes “malice,” “oppression,”.“fraud,” or “despicable conduct.” Thug; the only--

issue for the Court to decide is whether defendant has successfwly:met its burden of showing
that plaintiff has not and cannot present evidence proving SWINERTON’s employees exposed
plaintiff to asbestos and if so, whether-plaintiff now has demonstrated that there are triable
issues of material fact for the jury to consider. «

B. DEFENDANT SWINERTON FAILED TO SHIFT ITS BURDEN OF PROOF
AS IT CONDUCTED LIMITED DISCOVERY BY NOT THOROUGHLY
EXAMINING PLAINTIFF AT HIS DEPOSITION AND BY NOT
PROPOUNDING SUPPLEMENTAL DISCOVERY REQUESTS

California Code of Civil Procedure § 437c(p\(2) describes the evidentiary burden a
moving defendant must meet: _

>A Defendant.. has met his or her burden of showing that a cause of .
action has no merit if that party has shown that one or more elements

. of the cause of action .. cannot be established, or that there is a
complete defense to that cause of action. Once the Defendant. has met
that burden, the burden shifts to the plaintiff .. to show that a triable
issue of one or more material facts exists as to that cause of action or a
defense thereto. (Code of Civil Procedure § 437¢(p)(2), emphasis added.
See also the Cal. Supreme Court’s interpretation in Aguilar v. Atlantic
Richfield Co. (ool) 23 Cal.4th 826, 850-851.)

Defendant failed to meet its burden of showing plaintiff's cause of action has no merit.
A motion for summary judgment is a drastic measure which deprives the losing party of a trial
on the merits, and should therefore be used only with caution. (Bunzel v, Am. Academy of
Orthopedic Surgeons (1980) 107 Cal.App.3d 165, 169.) Because of the drastic nature of

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PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT SWINERTON BUILDERS'S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONBoM WB NM N NM NB NR BS ee eee OD
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summary judgment procedure, any doubts as to whether summary judgment is proper must be
resolved against the moving party. (Hayman v. Block (1986) 176 Cal.App.3d 629, 639.) The
motion must not be granted unless the evidence brought forth by the moving party establishes
that there is no triable issue of material fact to be decided and that the moving patty is entitled
to judgment as a matter of law. (C.C.P. § 437c(n}j(0).) Absent this narrow finding, summary
judgment is not warranted.

Defendant fails to carry its threshold burden of producing competent evidence
establishing facts negating plaintiff's claims. In Aguilar v, Atlantic Richfield Company (2001)
25 Cal.4th 826, the. California Supreme Court “clarified the law that courts must apply. in ruling:

on'motions for. summary judgment.”:-‘Ehe: Aguilar court held that.“from commencement to.. :

-conclusion, the party moving'for summary judgment bears the burden of persuasion that there is

no triable issue of material fact and that he is entitled to judgment as a matter of law.” (1d, at
845.) “A defendant bears the burden of persuasion that ‘one or more elements of the ‘cause of
action’ in question ‘cannot be established,’ or that ‘there is a complete defense’ thereto.” (Id, at
849, quoting C.C.P. § 437c(0)(2).)

"Summary judgment law in this state, however, continues to require a defendant moving
for summary judgment to present evidence, and not simply point out through argument. that the
plaintiff does not possess, and- cannot. reasonably obtain, needed evidence. In this particular at
least, it still diverges from federal law. For the defendant must ‘support[]’ the ‘motion’ with
evidence including ‘affidavits; declarations, admissions; answers to interrogatories, depositions,
and matters of which judicial notice *must ormay:‘be taken...."" (Id, at 855, quoting C.C.P. .
§ 437c(b), italics. in original.) . :

Specifically, Aguilar ends any notion that defendants may somehow obtain summary
judgment simply by asserting, without proof, that plaintiff has no evidence to support his cause
of action. "Language in certain decisions purportedly allowing a defendant moving for
summary judgment simply to ‘point[]’ out, through argument, ‘an absence of evidence to
support’ an element of the plaintiff's cause of action (e.g., Hunter v. Pacific Mechanical Corp.

Me

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PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT SWINERTON BUILDERS'S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION210)

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(1995) 37 Cal_App.4th 1282, 1288, italics in original) does not reflect summary judgment law
as it has ever stood, and is accordingly disapproved.” (d., fn 23.)

SWINERTON, as the moving party, has the burden of demonstrating through the
presentation of facts and evidence that plaintiff cannot establish one or more elements of his
causes of action. “The moving party must show that under no possible hypothesis within the
reasonable purview of the allegations of the complaint is there a material question of fact which

requires examination by trial.” (Chevron U.S.A. Inc. v. Super. Ct. (Cobb) (1992) 4

Cal.App.4th 544, 548.) “If the defendant does not satisfy its burden as the moving party, the
miotion-must be denied, and it is wanecessary.for the court to consider the plaintiff?s.-...<.<
opposition; if any.” (Id., emphasis-added:} oa et POO ie ot
In ruling on the motion, the court must “consider all of the evidence” and “all” of the -:
“4nferences” reasonably drawn therefrom, and must view such evidence in the light most

favorable to the opposing party. (Aguilar v, Atlantic Ritchfield Company, supra, 25 Cal.4th

826, 843.)
Defendant has not shifted its burden. In Scheiding v. Dinwiddie (1999) Cal.App.4th 64,

80 the court held that the defendant could not base a motion for summary judgment on its own

failure to engage in discovery: “. . .[W]Je can infer nothing at all with respect to questions which

were neither asked nor answered.” Scheiding at 81.. This standard was affirmed in Weber v.
John Crane (2006) 143 Cal.App.4th 1433:

. John Crane attempts to shift the burden of producing evidence to plaintiffs by limiting. ;

its discovery to a single question that Weber could not be expected to answer affirmatively: his
ability recall products to which he had been exposed over 40-years ago. A negative response to
that question simply does not create an inference either of nonexposure or of the inability to
prove exposure by some other means. Contrary to John Crane's position, and to the trial court's
apparent understanding, the cases do not establish that a defendant shifts the burden of
production to the plaintiff by showing that a plaintiff witness has no personal recall of the

defendant's product. (Id.)

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PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT SWINERTON BUILDERS’S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONew ey AH ew Ye

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As in Weber, defendant attempts to shift the burden of production to plaintiff based on
plaintiff's deposition testimony. However, defendant cannot successfully do so as it did not ask -
the right questions. SWINERTON’s counsel at Mr. CASTAGNA’s deposition started his
questioning of Mr. CASTAGNA by asking him ifhe recognized the name SWINERTON
BUILDERS. When Mr. CASTAGNA replied that he did recognize this name, that he had
worked for SWINERTON on several occasions, SWINERTON’s counsel proceeded to spend
almost the entire time he was allocated to question Mr. CASTAGNA on the minute details of
the times when he worked for SWINERTON. After at least 30 questions on
Mr. CASTAGNA’s employment:history with SWINERTON. did SWINERTON’s:counsel:

} finally question Mr. CASTAGNA onthe: eccasions when-he did not work for SWINERTON

but worked around SWINERTON’s employees. Defendant simply did not conduct the: .
deposition questioning efficiently. +

As he testified in his deposition, Mr. CASTAGNA saw SWINERTON employees
working around him at Tosco Oil in 1983. However, due to SWINERTON’s counsel’s poor
choice of questioning at Mr. CASTAGNA’s deposition he failed to follow up on what work
Mr. CASTAGNA saw the SWINERTON employees perform around him at Tosco in 1983.
Defendant SWINERTON cannot reasonably argue that due to General Order time limitations it
was not given sufficient time to question Mr. CASTAGNA. The Court granted defendants in
this matter a total of 37 hours to depose Mr. CASTAGNA. Additionally, SWINERTON’s
counsel many:times acknowledged when he questioned Mr. CASTAGNA that he had a limited +
time to conduct his questioning. Thus, SWINERTON’s counsel was well aware of the time
restrictions and should have used his time to question Mr. CASTAGNA to learn about the
instances where Mr. CASTAGNA was not employed by SWINERTON but worked around
SWINERTON’s employees. Further, after SWINERTON’s counsel realized that he ran out of
time to question Mr. CASTAGNA about the work the SWINERTON employees performed
around him at Tosco in 1983, counsel failed to either try to move the court for additional time to
depose Mr. CASTAGNA or to serve on plaintiff supplemental discovery requests to obtain this

information.

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PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT SWINERTON BUILDERS'S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONAt his deposition, Mr. CASTAGNA was not asked about the work he saw
SWINERTON employees perform around him at Tosco Oil in 1983. Had he been asked, he
would have testified that he worked within 5 feet of SWINERTON’s pipefitters and laborers,
The pipefitters employed by SWINERTON were removing and scraping off Garlock-type and
Flexitallic type gaskets from the pipe flanges on steam lines, These pipefitters used scrapers,
wire brushes, and buffing wheels on grinders to scrape off these gaskets. The laborers
employed by SWINERTON would sweep up all the dust and debris left by al! the trades on the
ground. This dust and debris included the Garlock-type and Flexitallic-type gaskets removed by

fh SWINERTON’s pipefitters. All-this work performed.by SWINERTON’s employees created, ¥..9

‘visible dust which Mr. CASTAGNA‘ bréathed in-because ‘he never wore-a mask or anys cai cf

: breathing protection while he worked at Tosco Oil in Avon, California, in-1983.

Thus, consistent with Scheiding, defendant cannot base its motion for summary
judgment on its own failure to engage in discovery. (Scheiding at 80.) A motion for summary
judgment is not a mechanism for rewarding limited discovery. (Weber v. John Crane, Inc.
(2006) 143 Cal.App.4th 1433, 1442.) Because defendant failed to ask proper questions at the

deposition, did not move the court for additional time to depose Mr. CASTAGNA, and did not
serve supplemental discovery requests defendant cannot successfully argue that it shifted the
burden to plaintiff solely on the basis of plaintiffs answer to one deposition question about if
he ever worked around SWINERTON employees when he was not employed by SWINERTON,
which. Mr. CASTAGNA testified that he believed he. saw:SWINERTON employees at Tosco. in
1983.
Cc. TRIABLE ISSUES OF MATERIAL FACT EXIST REGARDING
MR. CASTAGNA’S EXPOSURE.TO ASBESTOS FOR WHICH
SWINERTON IS LIABLE

If the Court should find that SWINERTON has somehow shifted the burden to plaintiff,

which it has not, the Court should still deny defendant’s motion as triable issues of material fact
exist. “The function of the trial court in ruling on a motion for summary judgment is merely to
determine whether such issues of fact exist, not to decide the merits of the issues themselves.”

(Furla v. Jon Douglas Co. (1998) 65 Cal.App.4th 1069, 1076-7.) “The primary duty of the trial

K.Alojuredi022981pl¢.opp-SWINBU.wpd 9 Tey

PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT SWINERTON BUILDERS’S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONSom a AH Bw HN

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court is to decide whether there is an issue of fact to be tried. If it finds one, it is then powerless
to proceed further, but must allow such issue to be tried by a jury unless a jury trial is waived.”
(Walsh v. Walsh (1941) 18 Cal.2d 439, 441, emphasis added.) “If an issue of fact is present the
trial court abuses its discretion in granting such a motion.” (Black v, Sullivan (1975)
48 Cal.App.3d 557, 567.)

“The aim of the [summary judgment] procedure is to discover, through the media of

affidavits, whether the parties possess evidence requiring the weighing procedures of a trial”

(Joslin v. Marin Municipal Water District (1967) 67 Cal.2d 132, 147.) “In examining the

“sufficiency. of affidavits filed dm connection with.thé: motion, the affidavits-of the moving party...

are strictly construed and those.of his opponent liberally construed, and doubts.as-to the...
propriety of granting.the motion should be resolved in Savor of the party opposing the
motion.” (1d., emphasis added.) “Additionally, the facts alleged in the affidavits of the party
opposing the motion must be accepted as true.” (Herber v. Yaeger (1967) 251 Cal.App.2d
258, 262, emphasis added.)

The Court cannot conclude as a matter of law, based upon the evidence which plaintiff .
submits in this matter via his declaration and an expert declaration, that triable issues of
material fact do not exist. Plaintiff's declaration, SWINERTON’s admissions in the deposition
testimony of its Person-Most-Knowledgeable, Mr. Kerry Atkinson, and the declaration of
asbestos expert, Charles Ay, demonstrate that Mr. CASTAGNA was exposed to asbestos by
SWINERTON’s pipefitters and laborers as they removed and swept asbestos-containing gaskets
near Mr, CASTAGNA.

lL The Declaration of Mr. CASTAGNA is Admissible Evidence

Plaintiff anticipates that defendant may object to plaintiff's submitted declaration based
on the California Supreme Court’s holding which “bars a party opposing summary judgment
from filing a declaration that purports to impeach his or her own prior sworn testimony.” (Scalf
vy. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1521-22 citing and clarifying D’ Amico
vy. Board of Medical Examiners (1974) 11 Cal.3d 1, 21-22.) The cases are clear, however, that

summary judgment shall not be granted on the basis of “tacit admissions or fragmentary and

Alm ured102298\pid\opp-SWINDU.wpd 10 tev
PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT SWINERTON BUILDERS'S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONoD 2 BW A A Rh wh

10)

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43
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equivocal concessions.” (Scalf, 128 Cal.App.4th at 1523, citations omitted.) The Scalf court
reasoned that “a vast difference between written discovery admissions .. and glib, easily
misunderstood answers given by a lay opponent in a deposition” exist. (id. at 1522, citations
omitted.) “For summary judgment purposes, deposition answers are simply evidence. Subject
to the self-impeachment limitations of D’ Amico, they are considered and weighed in
conjunction with other evidence. They de not constitute incontrovertible judicial admissions
as do, for example, concessions in a pleading.” (d., emphasis added.) Likewise, an apparent

contradiction between plaintiff's declaration and his deposition testinsony may be explained by

shis supplemental declaration and other evidence.  Qiederery: Ferreira (1987) 189.Cal App.3dicda-r -

1485;1503.30

~ Here, plaintiff's declaration does not contradict his prior deposition testiniony. Itmerely
supplements it. Since Mr. CASTAGNA was not thoroughly examined about the work he saw
SWINERTON’s employees perform around him at Tosco in 1983, Mr. CASTAGNA should be
allowed to further articulate the basis of his claims against SWINERTON,
As it is readily apparent that triable issues of material fact exist for a jury to decide,
plaintiff respectfully requests that the Court deny SWINERTON’s Motion for Summary
Judgment, or in the Alternative, Summary Adjudication. /

D. PUNITIVE DAMAGES AGAINST SWINERTON ARE WARRANTED
Defendant failed to shift its burden to plaimtiff. Defendant SWINERTON failed to

thoroughly conduct discovery in this case prior to filing its Motion for Summary Judgment.

- There is no evidence on the record that SWINERTON propounded specially prepared “all-facis”
interrogatories to plaintiffs in an effort to assess all facts, witnesses and documents plaintiff has «
to support his punitive damages claim against SWINERTON prior to filing its motion.
(SWINERTON’s Separate Statement of Undisputed Facts Nos. 1-12.)
In Scheiding v, Dinwiddie (1999) Cal.App.4th 64, 80 the court held that the defendant
could not base a motion for summary judgment on its own failure to engage in discovery: “..
.[W]e can infer nothing at all with respect to questions which were neither asked nor answered.”

Scheiding at 81. This standard was affirmed in Weber v. John Crane (2006) 143 Cal. App.4th

KAlnjured\02298ip\dinpp SWINBU «pd i rev
PLAINTIFFS MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT SWINERTON BUILDERS’S

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1433, 1442: “a motion for summary judgment is not a mechanism for rewarding limited
discovery.”

As in Weber, defendant SWINERTON fails to produce any evidence allowing an
inference that plaintiff does not possess, or cannot reasonably obtain, any evidence of exposure
to an asbestos-containing product for which defendant is liable. As in Weber, defendant
SWINERTON does not “support its motion with evidence that plaintiffs failed to provide
meaningful responses to comprehensive interrogatories designed to elicit all the evidence
plaintiffs had to support their contention of liability.” (Id, at 1442.) As the Weber court
indicated, “[a] motion for summary judgment is not a mechanism for rewarding limited
discovery ... [T]he defendant must in some way show that the plaintiff does not have and
cannot reasonable obtain evidence of causation.” (Id.) Defendant has made no such showing.

Nevertheless, plaintiff does possess evidence that the trier of fact may deem sufficient
to show that punitive damages are warranted againts SWINERTON. The California Civil Code
§ 3294(a) states that, where “defendant has been guilty of oppression, fraud, or malice, the
plaintiff, in addition to the actual damages, may recover damages for the sake of example and
by way of punishing the defendant.” California Civil Code § 3294(c)(1) goes on to define
malice as “conduct which is intended by the defendant to cause injury to the plaintiff er
despicable conduct which is carried on by the defendant with a willful and conscious disregard
of the rights or safety of others.” (Emphasis added.) Further, California Civil Code §
3294(c\(1) defines oppression as “despicable conduct that subjects a person to cruel and unjust
hardship in conscious disregard of that person’s tights. The Restatement of Torts § 908
provides:

(1) Punitive damages are damages, other than compensatory or nominal damages,
awarded against a person to punish him for his outrageous conduct and to deter him and others
like him from similar conduct in the future. :

(2) Punitive damages may be awarded for conduct that is outrageous, because of the
defendant's evil motive or his reckless indifference to the rights of others. In assessing punitive
damages, the trier of fact can properly consider the character of the defendant's act, the nature

fune\102298%pidopp- SWINE 12 : x tcy
PLAIN TIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT SWINERTON BUILDERS’S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONOC me I Ah Re DY

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and extent of the harm to the plaintiff that the defendant caused or intended to cause and the
wealth of the defendant.

Here, defendant readily admits that SWINERTON performed work at Tosco Oil in
Avon, Califomia, in 1983. (PSS No.11,.) SWINERTON also admits that SWINERTON held
discussions about asbestos prevention and/or safety in 1982. (PSS No. 16.) SWINERTON also
admitted that it was well known in 1982 that asbestos was a hazard. (Id.) Finally,
SWINERTON admits that it had a safety program that protected SWINERTON’s employces
and the general public, well before 1982. (PSS No. 17.)

Defendant SWINERTON should be held liable for punitive damages because it acted
with malice, oppression, or fraud. SWINERTON’s actions are outrageous and despicable and
was carried on with willful and conscious disregard for the rights or safety of other contractors
working around SWINERTON, like Mr. CASTAGNA.

These facts provide ample evidence to sustain plaintiff's claim for punitive damages.
There is evidence that defendant SWINERTON knew of the hazards of asbestos in the early
1980s, yet for years failed to warn other contractors they worked around of these hazards,
claiming that these contractors should have known of the hazards from the OSHA regulations in
place at the time. Such conduct is both malicious and oppressive. At a minimum, triable issues
of material fact exist. A jury alone can decide whether these facts amount to outrageous and
despicable giving rise to punitive damages under California Civil Code § 3294. Plaintiff's
claims here cannot be decided as a matter of law. As a result, defendant’s motion must be
denied.

CONCLUSION

For the reasons stated herein, plaintiff respectfully requests that this Court deny
defendant’s Motion for Summary Judgment, or in the Alternative, Summary Adjudication, as
defendant failed to carry its burden under C.C.P. § 437c(c) and § 437c(p)(2) of proving that
plaintiff does not have, and cannot prove, his prima facie case against it. Additionally, triable
MW
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PLAIN’ RTEES 5 uf 13 SWINERTON BUILDERS'S: fee
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MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONoD PN DA HW F&F WH YP =

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issues of material fact exist concerning Mr. CASTAGNA’s asbestos exposure from working
near SWINERTON’s employees removing and sweeping asbestos-containing materials.

Dated: F.as- 2010 * BRAYTON“*PURCELL LLP

By:
AnnéW\Acutia
Attorneys for Plaintiff

{To comply with Department 220's rules regarding tentative rulings, you must call
the Law & Motion Message Line (415) 493-3594 to give us notice if you wish to contest a
tentative ruling. A copy of any email notification to Dept. 220 must be sent to

contestasbestosTR@braytonlaw.com.]

i : Tey
See MORANDLR SITION TO DEFENDANT SWINERTON BUILDERS’S
DUM OF POINTS AND AUTHORITIES IN OPPOSIT!
SN TS ME MARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION