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

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ALAN R. BRAYTON, ESQ., S.B. #73685
DAVID R. DONADIO, ESO., S.B. #154436

2|| ANNE T. ACUNA, ESQ,, $.B. #245369
BRAYTON®PURCELL LLP ELECTRONICALLY
34) Attorneys at Law 5 FILED
222 Rush Landing Road Superior Court of California,
4] P.O. Box 6169 County of San Francisco
Novato, California 94948-6169 ° AUG 25 2010
3 }] (415) 898-1555 a. Clerk of the Court
Tentative Ruling Contest Email: contestasbestosTR@braytonlaw.comgy: aLiSON AGBAY
6 oe Deputy Clerk
7 Attorneys for Plaintiff :
8 SUPERIOR COURT OF CALIFORNIA
. Ope : . COUNTY OF SAN FRANCISCQ .
11) LOUIS CASTAGNA, ) ASBESTOS
: . , ) No. CGC-07-274230
i2 Plaintiff, 5
“ $ \ ) PLAINTIFF'S RESPONSE TO
a9 3 13 |) vs. ; DEFENDANT SWINERTON
qeg § BULLDERS’S SEPARATE STATEMENT
Reese 14] ASBESTOS DEFENDANTS (B¢P) } OF UNDISPUTED FACTS
& S25
EEGBRE 15
S2Z3A836
Ze5eR' Date: September 9, 2010
& E = 8 16 , Time: 9:30 a.m.
a8 g _ Dept. 220, Hon. Harold E. Kahn
a £ 17 Trial Date: October 12, 2010
‘ Action Filed: June 6, 2007
18
19 Plaintiff hereby submits the following responses to defendant SWINERTON

20 || BUILDERS’s Separate Statement of Undisputed Facts in Support of Motion for Summary
21 |) Judgment or, in the alternative, Summary Adjudication, with reference to plaintiff's supporting
22 |) evidence disputing such statements.:

23 || UNDISPUTED MATERIAL FACTS AND
ALLEGED SUPPORTING EVIDENCE PLAINTIFF'S RESPONSE/EVIDENCE

1. Plaintiff’s complaint alleges a single 1. Undisputed.
25 || cause of action for Premises :
Liability/Contractor Liability, and a claim

26 || for punitive damages, against Swinerton.

27 || Plaintiff Louis Castagna’s Complaint for
Personal Injury— Asbestos, attached as

28 || Exhibit A to the Declaration of Josette D.
Johnson (“Johnson Deci.”) at pp. 1:17-3:8,

MnjuredJ02298\plé\rss-SWINBU wp : 1 nev
PLAINTIFF'S RESPONSE TO DEFENDANT SWINERTON BUILDERS’S SEPARATE STATEMENT OF UNDISPUTED FACTSoF mw NS DH Bw DD

2. Plaintiff's Compiaint alleges © 2. Undisputed.
occupational exposure to asbestos while

employed as an oiler from 1967 to 1973,

and as a steamfitter from 1969 to 1987.

Johnson Decl., Exhibit A at 5:1-12:9.
See also Plaintiffs’ February 9, 2010
Supplemental Amended Responses to
Standard Interrogatories, Sets One and
Two, in seriatim, attached to the Johnson
Decl., as Exhibit F.

3. In response to Swinerton’s Special 3. Undisputed.
Interrogatories requiring Plaintiff to identify

each location where he claims he was

exposed to asbestos as a result of conduct o:

‘ Swinerton, Plaintiff identifiedthe....- 0.

cateracker unit at Tosco Oil, Avon,
califomnia, from April 1983 through August
10, :

Defendant Swinerton’s Special
Interrogatories to Plaintiff Louis Castagna,
Set one, attached as Exhibit B to the
Johanson Decl. at p. 2:7-12;

Plaintiff's Responses to Defendant
Swinerton’s Special Interrogatories, Set
One, attached as Exhibit C to the Johnson
Decl. at 2:2-3:4,

4, In response to Swinerton’s Special 4. Undisputed.
Interrogatories requiring Plaintiff to state all
facts which support his claims against
Swinerton, Plaintiff responded that:
“Plaintiff worked next to SWINERTON
BUILDERS’ contractors and/or employees
who disturbed ashestos-containing «
insulation and fireproofing material when
they. demolished pipelines, beams and
catcrackers and away chipped [sic],
fireproofing off of beams. Plamtiff'saw
SWINERTON BUILDERS?’ contractors
and/or employees cleaned up fallen:debris
by sweeping with a broom, creating a lot of
dust.”

Johnson Decl, Exhibit B at 2:20-25;
Johnson Deci., Exhibit C at 3:8-11.

5. During his deposition, Plaintiff testified 5. Undisputed.
that when he worked at Tosco in 1983,

SWINERTON employees were also
present. .

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PLAINTIFF'S RESPONSE TO DEFENDANT SWINERTON BUELDERS’S SEPARATE STATEMENT OF UN:

DISPUTED FACTS.oO SB ND A RP we Yom

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Pertinent portions of the deposition of
Plaintiff, attached to the Johnson Decl., as
Exhibit G at 1080:21-1081:3.

&. During his deposition, Plaintiff testified
that Plant Insulation was doing the
insulation work at Tosco in 1983.

Johnson Decl., Exhibit G at 1060:15-
1061:5.. :

7. In response to Swinerton’s Special

Interrogatories requiring Plaintiff to identify ~

all persons with knowledge of facts to
support his claims against Swinerton,
Plaintiff identified only himself, James
Saathoff “c/o Brayton Purcell,” and
SWINERTON BUILDERS’ employees,

Johnson Decl., Exhibit B at 2:27-3:6;
Johnson Decl., Exhibit C at 4:5-15.

8. Inhis own personal injury action, James
Saathoff stipulated that he was not exposed
to asbestos on or after January 1, 1980.

Pertinent portions of the deposition of
James Saathoff, taken in Saathoff v.

Asbestos Defendants, San Francisco County

Superior Court, Case No, 274017, attached
to the Johnson Decl., as Exhibit B at
388:24-389:2. :

i

9. In response to Swinerton’s Request for

Production of Documents requiring Plaintiff

to produce all writing that support his
contention that he was exposed to asbestos
as a result of the act or omission of
Swinerton, Plaintiff identified his own
Complaint, discovery responses, |
employment and Social Security records,
and deposition transcripts in this case;

KNeruredi022e 2: SWINE we

6. Disputed, Mischaracterization of the
evidence. Inaccurate statement of fact,
which is unsupported by the cited evidence.
Misleading. The deposition testimony cited
by defendant never mentions that Plant
Insulation was perfonning insulation work
at Tosco in 1983, Rather, it states that Plant
Insulation performed the insulation work on
a project in a coker unit. There is no
mention in the excerpts cited by defendant
that this coker unit was at Tosco Oil and

that the work was performed in 1983.

Defendant's Exhibit G at 1060:15-1061:5

7. Disputed. Misstates evidence.

Incomplete recitation of the facts, ~
Misleading. Plaintiff additionally identified

-in his response to Swinerton’s Special

Interrogatories the following person(s) with
knowledge of facts to support his claims
against SWINERTON in this action

Plaintiff identifies the Person(s) Most
Knowledgeable, the Custodian(s) of
Records, and all current and former
employees of defendant SWINERTON
BUILDERS.

Defendant's Exhibit B at 2:27-3:6;

‘Defendant’s Exhibit C at 4:5-15.

8. Undisputed. However, this “statement
of fact” is irrelevant and immaterial to
prove or. disprove a material fact in Mr.
Castagna’s case.

9, Disputed. Misleading. Misstates
Evidence. Incomplete recitation of the
facts, In plaintiff's response to
SWINERTON’s Request for Production of
Documents requiring plaintiff to produce all
writings that support his contention that he
exposed to asbestos as a result of the act or
omissions of SWINERTON, plaintiff
identified the following:

PLAINTIFF'S RESPONSE TO DEFENDANT SWINERTON BUILDERS’S SEPARATE STATEMENT OF UNDISPUTED FACTSPlaintiff further identified “all records,
papers, photographs, films, recordings,
memoranda, books, pamphlets, circulars,
handbooks, manuals, periodicals, files,
envelopes, notices, instructions, transcripts,
notes, telex messages, communications,”
etc., in Swinerton’s constructive possession,
custody, care, or control relating to plaintiff
and the job sites as which he worked.

Swinerton’s Request For Production of
Document, Set One, attached to the
Johnson Decl., as Exhibit D at 3:20-27;
Plaintiff's Response to Swinerton’s Request
For Production of Documents, Set One, to
the Johnson. Decl., as Exhibit E at 5:1-6:15.

K Mnjurech102298'pldvse-SWINBU vj

. Plaintiff identifies responses to
discovery in this matter, including Standard
Asbestos Case Interrogatories, and all
exhibits attached thereto, if any. Plaintiff
identifies the Complaint filed in this matter
on June 6, 2007. Plaintiff further identifies
plaintiff s Social Security records, work

story, medical records and billings, and
other personal records, which have been, or
will be produced to coordinating defense
counsel, Berry & Berry, and are equally
available to defendant.

Plaintiff identifies the transcripts of
all depositions taken in this action, and all
attached exhibits, if any. Plaintiff identifies
plaintiffs deposition transcripts and all
exhibits, if any. attached thereto.:: 3:
commencing on June 17, 2008 and all
subsequent dates. These transcripts are
reported by and available from Aiken &
Welch, One Kaiser Plaza, Suite 505,
Oakland, California. Plaintiff believes
defendant is in possession of these
documents.

Plaintiff identifies all transcripts and
testimony of the Person Most
Knowledg eable and the Custodian of
Records for defendant SWINERTON
BUILDERS and ail the other named
defendants in this action. Plaintiff believes
defendant is in possession of these
documents.

Plaintiff further identifies defendant
SWINERTON BUILDERS’ General Order
No. 129 Responses, Amendments,
Supplements and Exhibits attached thereto.
Plaintiff believes defendant is in possession
of these documents.

Plaintiff further identifies all the
records, papers, photographs, films,
recordings, memoranda, books, pamphlets,
circulars, handbooks, manuals, periodicals,
files, envelopes, notices, instructions,
transcripts, notes, telex messages,
communications (including reports, notes,
notation and memoranda of tclephone
conversations and conferences, electronic
mail, minutes, transcriptions,
correspondence, etc.) writings, letters,
telegrams, correspondence, notes of
meetings or of conversations either in
writing or upon any mechanical or
electronic devices, notes, contracts,
accountants’ statements or summaries,
purchase order forms, reports, invoices,
canceled checks, check stubs receipts, bank

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PLAINTIFF'S RESPONSE TO DEFENDANT SWINERTON BUILDERS'S SEPARATE STATEMENT OF UNDISPUTED FACTS.Oo BTA HD Rw NH

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statements, diaries, desk calendars,
appointment books, payment records,
telephone bills in defendant SWINERTON
BUILDERS’ constructive possession
custody, care or control relating to plaintiff
and the jobsites where plaintiff worked.
Plaintiff further identifies all of the
agreements and contracts between
defendant, SWINERTON BUILDERS, and
any contractor, sub-contractor and supplier
who was present at any jobsite where
plaintiff worked. Plaintiff further identifies
all blueprints, plans, drawings, schematics,
specifications in defendant SWINERTON
BUILDERS’ constructive possession
custody, care.or control relating to plaintiff

-and the jobsites where plaintiff worked. +...
’ Plaintiff believes defendant is in possession

of these documents.

, Additionally, plaintiff identifies
numerous articles and studies relating to the
health hazards associated with exposure to

- asbestos, which have appeared in medical

and scientific literature since the turn of the
20" century and have also been summarized
in various publications. Plaintiff identifies
two texts that contain summaries and/or
bibliographies of asbestos-related disease.
They are:

Asbestos: Medical and Legal
Aspects, Barry I. Castleman,
Prentice-Hall Law & Business,
1990; and

Sourcebook on Asbestos Disease:
Medical Geeal & Engineering
Aspects, George A. Peters an:
Barbara J. Peters, Garland STPM
Press, Vol. 1, 1980, Vol. 2, 1986.

Plaintiff is in possession of these texts and

will make them available for defendant’s
review. Due to copyright laws, plaintiff
cannot provide copies of these texts to
defendant. Plaintiff also identifies General
Industry Safety Orders promulgated under
the California Department of Industrial
Relations, Division of Industrial Safety,
Title 8, Article 81, including but not limited
to Sections 4104 through 4107, and
Appendix A, Table 1 in effect during the
years 1948 to 1972. Plaintiff identifies the
NESHAP for asbestos, which are found at
Code of Federal Regulations, Title 40,
Chapter 1, subchapter c, part 61, subpart m;

Tc

PLAINTIFF'S RESPONSE TO DEFENDANT SWINERTON BUILDERS’S SEPARATE STATEMENT OF UNDISPUTED FACTS:10. Plaintiff did not produce any
documents in response to Swinerton’s
request for production of documents.

11. SWINERTON was deposed in this
action and testified that SWINERTON
employees did not sweep up insulation at
Tosco in the 1980s. 3

Pertinent portions of the transcript of
deposition of Kerry Atkinson taken in this
matter, attached to the Johnson Decl., as
Exhibit 1, at 80:1-81:17.

12. Swinerton’s person most :
knowledgeable testified that SWINERTON

| employees did not work with insulation at

Tosco in the 1980s: ~ -

Johnson Deel., Exhibit I at 82:16-83:20,
85:10-12.

i
t

KAlnjucesh 02298 SWINEU

. the possession of defendant. Additionally, .
plaintiff's responses stated that it would

written request. Atno time.did :.

published under the Federal Clean Air Act
of 1970, 42 U.S.C.A, Section 7412(b)(1 (A)
and 42 U.S.C.A. Section 7412(b)(1)(B).
Plaintiff also identifies OSHA standards
relating to asbestos, found at Code of
Federal Regulation, Title 29, Chapter 17,
Section 1910, et seq.; and Title 8, Section
5208 of the California OSHA regulations
pertaining to asbestos exposure.

Detendant’s Exhibit D at 3:20-27;
Defendant’s Exhibit E at 5:1-6:15.

10. Undisputed, but documents identified
by plaintiff were equally available and/or in

produce doctiments with defendant’s >. 4

SWINERTON request copies of the
documents identified by plaintiff in his
responses. .

11. Undisputed for purposes of this motion.
However, this fact is irrelevant and
immaterial to ) prove or disprove the fact that
SWINERTON employees worked with,
handled, and disturbed other asbestos-
containing products such as gaskets at
Tosco in the 1980s.

See Deposition of Kerry Atkinson taken on
January 21, 2010, attached as Exhibit C to
the Declaration of Anne T. Acufia, at 76:23-
77:15; 79:79:10-12; 80:24-8 1:1; 81:18-
82:2; 82:7-15; 85:13-14; 85:16-21; 86:5-8;
86:11; 87:17-88-6; 88:11-24, 89:1.

12. Undisputed for purposes of this motion: |-
However, this fact is irrelevant and
immaterial to prove or disprove the fact that -
SWINERTON employces worked with;
handled, and disturbed other asbestos-
containing products such as gaskets at
Tosco in the 1980s.

See Deposition of Kerry Atkinson taken on
January 21, 2010, attached as Exhibit C to
the Declaration of Anne T. Acufia, at 76:23-

77:15; 79:79:10-12; 80:24-81:1; 81:18-
82:2; 82:7-15; 85:13-14: 85:16-21; 86:5-8;
86:11; 87:17-88-6; 88:11-24; 89:1.

rey

PLAINTIFF'S RESPONSE TO DEFENDANT SWINERTON BUILDERS'S SEPARATE STATEMENT OF UNDISPUTED PACTSOD OB WA NW RB WN

Adjudication Issue No. 1: Plaintiff's claim for punitive damages has no merit, because there is
no “clear and convincing evidence” that any of the conduct at issue concerning SWINERTON
herein constitutes “malice,” “oppression,” or “fraud,” or “despicable conduct,” which is
necessary to support such a claim, or there is no evidence of corporate ratification or approval of
any misconduct of Swinerton.

UNDISPUTED MATERIAL FACTS AND /
ALLEGED SUPPORTING EVIDENCE PLAINTIFF'S RESPONSE/EVIDENCE

SWINERTON BUILDERS incorporates Disputed, Plaintiff incorporates his

herein the above-stated Undisputed Material objections herein, as though restated in full.

Facts Nos. | through 22, as though restated . oe

in full. Defendant failed to shift its burden to
plaintiff. Defendant SWINERTON failed to

SWINERTON BUILDERS incorporates © thoroughly conduct discovery in this case

herein the evidence supporting the above- rior to filing its Motion for Summary

udgment. There is no evidence onthe ...
record that SWINERTON propounded -
specially prepared “all facts regarding
plaintiff's punitive d es claim”
interrogatories to plaintitis in an effort to
assess all facts, witnesses and documents
plaintiffs have to support his punitive
damages claim against SWINERTON prior
to filing its Motion.
(SWINERTON'S Separate Statement of

indisputed Facts Nos. 1-12.)

stated Undisputed Material Facts Nos. 1
through 22. as though restated in full.

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 y, John Crane (2006) 143
Cal-App.4th 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.” (1d. at
1442.) As the Weber court indicated, “[a]
motion for summary judgment is not a

JUnjueeshLo7zoRphdess-SWINBU. wed 7 Tey
PLAINTIFF'S RESPONSE TO DEFENDANT SWINERTON BUILDERS'S SEPARATE STATEMENT OF UNDISPUTED FACTScot eB RD A BY KH

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mechanism for rewarding limited discovery |
. [the 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.

Defendant SWINERTON admits that it
performed work at the Tosco Refinery in
1983. SWINERTON BUILDERS also
admits that it employed its own pipefitters at}
Tosco Oil in the 1980s, These pipefitters
would install piping systems and maintain
existing pi ing systems at Tosco.
SWINERTON BUILDERS further admits
that its pipefitters removed and installed
gaskets on pipe flanges at Tosco Qil in the
1980s. These pipefitters would remove
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 would come off in pieces
when they removed them from the pipe
flanges. The Garlock gaskets that came off
the flange in pieces would fail to the floor.
SWINERTON BUILDERS admits that it
employed its own laborers at Tosco Oil in
ihe 1980s. These laborers swept and
cleaned up the pipefitters’ dust and debris on
the ground. These laborers used square-
point shovels and brooms to perform this
work.

SWINERTON BUILDERS admits that it
held discussions about asbestos prevention
and/or safety in 1982. SWINERTON admits
that it was well known by at least 1982 that
asbestos was a hazard. SWINERTON had a
safety program that protects SWINERTON’s
employees from the hazards of asbestos well
before 1982.

See Deposition of Kerry Atkinson taken on
January 2), 2010, attached as Exhibit C to
the Declaration of Anne T. Acufia, at 31:4-
8, 33:23-24; 34:1, 34:3-19; 76:23-77:15;
79:79:10-12: 80:24-81:1; 81:18-82:2; 82:7-
15; 85:13-14; 85:16-21; 86:5-8; 86:11;
87:17-88-6; 88:11-24; 89:1.

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PLAINTIFF'S RESPONSE TO DEFENDAN

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