Motion-Secondary: CHARLES TOBEY VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON EXHIBITS et al

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                                BRAYTON®PURCELL LLP

ATTORNEYS AT LAW

222 RUSH LANDING ROAD

PO BON 6162

94948-6169

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ALAN R. BRAYTON, ESQ., 8.B, #73685
DAVID R. DONADIO, ESQ, S.B. #154436
SIDDHARTH JHANS, ESO., 2 S.B. #254165
BRAYTON“PURCELL LLP

Attorneys at Law

222 Rush Landing Road

P.O. Box 6169

Novato, California 94948-6169

(415) 898-1555

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

MAR 18 2010
Clerk of the Court

| Tentative Ruling Contest Email: contestasbestosT R@braytonlaw. COM BY: ANNIE PASCUAL

Deputy Clerk
Attomeys for Plaintiff

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN FRANCISCO
CHARLES TOBEY, ) ASBESTOS
. ) No. CGC-07-274226
Plaintiff, )

PLAINTIFF'S MEMORANDUM OF
vs. POINTS AND AUTHORITIES IN
OPPOSITION TO DEFENDANT E. 1. DU
ASBESTOS DEFENDANTS (BP) ) PONT DE NEMOURS’S MOTION FOR
SUMMARY JUDGMENT

Date: April], 2010

Time: 9:30 a.m.

Dept.: 220, Hon. Harold E. Kahn

Trial Date: May 10, 2010

Action Filed: June 5, 2007

L
INTRODUCTION

Defendant E. 1. DU PONT DE NEMOURS. (“DUPONT") has failed to show that plaintiff does
not have, and cannot obtain, a prima facie case against it. Defendant has failed to shift its
burden of response. Further, triable issues of material fact exist as to plaintiff's claims against

DILLINGHAM. Therefore, defendant is not entitled to summary judgment as a matter of law

i.
TATEMENT ACTS :

Plaintiff emered the insulating trade in 1958 as an apprentice insulator, become a journeyman

insulator in 1969, and left the insulating trade in. 1971. (Plaintiff's Separate Statement of

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PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT E.1. DU PONT DE NEMOURS’S:
MOTION FOR SUMMARY JUDGMENTOo we NY DR A BR ON

Disputed Material Facts (hereinafter “PSS”), No. 1.) Upon entering the insulation trade in
1958, Plaintiff became a member of the Asbestos Workers Local:16 union (PSS No. 2.)
Plaintiff worked at DuPont's Antioch facility sometime between 1965 and 1967 (PSS No. 3.)
Morris “Charlie” Chase was Plaintiff's co-worker and foreman at the DuPont facility during this
1965 to 1967 time period (PSS No. 4.) During this 1965 to 1967 time period, plaintiff was
installing half round insulation on pipes and using mud at DuPont’s Antioch facility. (PSS No.
5.) He recalls that the half round insulation he was installing was white in color (PSS No. 5.)
Plaintiff recalls that “Charlie” Chase and he worked as insulators several times during his career
for the same employers. During all the times that he worked with “Charlie” Chase he recalled
that he worked for the same employer as “Charlie” Chase (PSS No. 6.)

During the time “Charlie” Chase and. Plaintiff worked at the DuPont Antioch facility
sometime between 1965 and 1967, he recalls that “Charlie” Chase worked for Plant Insulation.
(PSS No. 7.) Based on the fact that “Charlie” Chase was working for Plant Insulation Company,
Plaintiff believes that he too, was working for Plant Insulation Company during this 1965 -1967
time period at DuPont (PSS No. 6.) Plaintiff was asked “Did you work for E.1. DuPont,” in
reference to this 1965-67 time period at the Antioch facility, and he responded, “Yes.” (PSS
No. 7.) However, upon having thought about his work with “Charlie” Chase and having
examined his Social Security records as well, Plaintiff believes he was mistaken in testifying
that I was working for E.1, DuPont. (PSS No. 7.} At this time, Plaintiff has no explanation as
to what led him testify that he was working for E.1 DuPont during the 1965 to 1967 time period,
other than the fact that he was asked by the examiner whether he worked for E.1. DuPont and
agreed with her by saying “Yes.” (PSS No. 7.)

Plaintiff does not recall ever receiving paychecks from E.] DuPont during this time
period (PSS No.8.) Plaintiff's Social Security Records do not indicate any income from E.1.
DuPont (PSS No. 9.) Plaintiff has have reviewed his social security records and they do not
indicate any income from E.I DuPont during the time he was an insulator, which correlates with
his memory (PSS No, 10.) Plaintiff believes he never worked for E.L.. DuPont during the time

period he was an insulator because all the insulating jobs that he performed were those he

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PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT EL DU PONT DE NEMOURS "Ss
MOTION FOR SUMMARY JUDGMENTSO em WN DH RB WN

performed as Local 16 union member (PSS No. 11.) The Local 16 union only sent Plaintiff to
insulating contractors, and thus all of his employers, during the time he was working as an
insulator, would have been insulating contractors, rather than a factory such as EJ. DuPont's
facility in Antioch. The only times that Plaintiff did not work for an insulating contractor
during the 1958-1971 time period were when he performed non-insulating jobs (PSS No. 12.)
One of the occasions that Plaintiff recalls performing non-insulating work during the 1958-
1971 time period that he worked as insulator was when he worked for Richfield Oi) Corporation
in 1964, which is the only employer on his Social Security records from 1958 till the end of
1970 who is a not insulating contractor (PSS No. 13.)

Plaintiff was never asked at his deposition whether he saw anyone else besides his crew
working with or disturbing insulation or insulating materials (PSS No. 14.) Had he been asked
this question, Plaintiff would have stated that he saw: laborers employed by E.1. DuPont using
brooms to sweeping up insulating debris that had fallen to the floor. This insulating debris
consisted of the mud that “Charlie” Chase and Plaintiff were using, the pieces of the white-
colored half-round pipe insulation they were installing, and the insulation dust that was created
when they cut the white half-round insulation that we were installing (PSS No. 15.) Plaintiff
knew these laborers were employed by E.L. DuPont because they-were wearing hard hats that
had “DuPont” written on them and shirts that said “DuPont” and “Safety is Our Most Important
Product,” a slogan he associated with E.I. DuPont (PSS No. 16.) Plaintiff was between 2 and 8
feet of these DuPont laborers when they were sweeping up this insulating debris. (PSS No. 17.)
He recalls that this process created significant amounts of dust which he breathed (PSS No. 17.}
‘The mud and the white-colored half round insulation that plaintiff described he was applying to
piping, more likely than not insulation more likely than contained asbestos (PSS No. 18.)
Plaintiff does not recall if he wore amask during this time period that he worked at the
DuPont's facility in 1965 - 1967. (PSS No. 19.) Had plaintiff worn a mask, it would been a
3M single-band paper mask, which on the few occasions that he did wear it, never prevented
him from breathing in air from the sides of the mask (PSS No. 18.) Had plaintiff been wearing

3M paper mask with a singlé band while, it would not have prevented him from breathing

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PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES fN OPPOSITION TO DEFENDANT E.I. DU! PONT DE NEMOURS’S:
MOTION FGR SUMMARY JUDGMENTrespirable asbestos fibers (PSS No. 20.) It is more likely than not, CHARLES TOBEY was
exposed to respirable asbestos dust and fibers when the DuPont laborers were sweeping up the

insulation debris within 2 and 8 feet of him (PSS No. 21.)

UL
LEGAL ARGUMENT
‘ THE SCOPE OF DUPONT’S MOTION IS LIMITED
TO THE ISSUES PRESENTED INITS S. TE 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 summary

judgment.” (Juge v, County of Sacramento (1993) 12 Cal.App.4th 59, 66.) “[T]he 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 (J) 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.” (luge, 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 each supporting material 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
Watercrafts, Inc. v. Wells Fargo Bank, NA, (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.

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PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT E.1 DU PONT DE NEMOURS ‘ 5
MOTION FOR SUMMARY JUDGMENTSO wm IU DW eB we ON

(1996) 50 Cal.App.4th 1911, 1916.) Due process further requites the Court to exclude any
evidence which was not timely served in accordance with C.C.P. § 437c(a). (San Diego
Watercrafts, 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, defendant does not dispute that the plaintiff, an insulator, testified to working at
the DUPONT facility in Antioch between 1965 and 1967. The defendant also does not dispute

that the plaintiff was using insulation and mud to insulate pipes at the DuPont facility. The only

issues alluded to by defendant is that during deposition, plaintiff did not give any testimony that j

would hold DuPont liable for his asbestos expsoure. Defendant failed to conduct a thorough
examination of plaintiff. Had defendant examined Mr. Tobey more thoroughly and carefully, it
would have learned that he saw laborers employed by DUPONT sweeping up the mud and
insulation he was using in close proximity to him. Defendant has presented no evidence of
having pursued other discovery and has made no claim that plaintiff's discovery responses are

factually devoid or otherwise inadequate.. These issues are therefore not before this Court

A. DUPONT Failed to Shift Its Burden under Scheiding v. Dinwiddie Since It
Presents No Evidence of Having P s Plaintiff Tnquirin:
Into the Facts Which Would Support Liabilit

A defendant may not rely on its own failure to pose proper questions as evidence that
responsive information does not exist. The court in Scheiding v. Dinwiddie (1999) 69
Cal.App.4th 64 held that a defendant which propounded no discovery, and which asked no
questions about jobsite identification could not thereby assert that plaintiffs were unable to
produce evidence of defendant’s liability: “. ..[W]e can infer nothing at all with respect to
questions which were neither asked nor answered.” Schéiding, 81. Additionally, Scheidin:
clearly indicates that reliance wpon standard interrogatory responses and deposition testimony is
insufficient to shift the burden to plaintiffs. Scheiding, 83. Indeed, with respect to both
deposition testimony and standard interrogatories, the court stated that “neither of these devices

was comparable to an “all-facts” interrogatory.” Scheiding, 83.

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PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION 10 DEPENDANT E.1. BU PONT DE NEMOURS’S

MOTION FOR SUMMARY JUDGMENTSU eR DA Be DY

Defendant has made no showing that it propounded written discovery to plaintiffs. It
thus relies entirely upon a claim that the absence of ability to produce evidence may be inferred
from plaintiff's deposition testimony alone. The courts have found such a strategy to be fraught
with peril.

In Weber v. John ‘Crane. ine, (2006) 143 Cal. App.4th 1433, the court made clear that
“A motion for summary judgment is not a mechanism for rewarding limited discovery, it is a
mechanism allowing the early disposition of cases where there is no reason to believe that a
party will be able to prove its case. (Id, at 1442.) In that'case, defendant John Crane attempted
shift the burden by relying in plaintiff's deposition testimony to demonstrate that was unable to
recall working with a specific John Crane product or if such a product ever exposed him to
asbestos. The Weber court noted that “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.” (Id, at 1439.) The Weber court found that defendant’s

reliance on plaintiff's deposition testimony was insufficient to shift the burden to plaintiff. (Id.
at 1442.) Even had defendant’s deposition examination been sufficient (It was not, as discussed
below.) to establish that plaintiff lacked sufficient personal knowledge to establish DUPONT’s
liability, the examination does notidemonstrate that plaintiff could not otherwise produce the
necessary evidence. Defendant does not demonstrate that it conducted any othe r inquiry into
the state of evidence available to plaintiff. ,

Simply stated, by relying on plaintiff's deposition testimony, DUPONT failed to submit
the requisite evidence which triggers a burden shifi to plaintiff in this case as required by C.C.P.
§ 437¢(p)(2). Defendant failed to exhaust all discovery procedures before relying on the
absence of information as evidence to support its motion. Without showing that it has engaged
in meaningful defendant-specific discovery and providing evidence that plaintiffs’ responses to
that discovery are ‘factually devoid’ or that they otherwise fail to demonstrate there is evidence
for plaintiffs’ claims agains. DUPONT , defendant has failed to shift its burden of response

under Scheiding and Weber.
Mit

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PLAINTIFF'S MEMORANDUM OF POINTS AND. AUTHORITIES IN OPPOSITION TO DEFENDANT E.]. DU PONT DE NEMOURS'S:
MOTION FOR SUMMARY JUDGMENTCD © YN Dh BB WN

B. DUPONT failed to shift its burden because it failed to conduct a proper
examination of the plaintiff.

Defendant's bases its motion solely on plaintiff's deposition testimony but fails to

demonstrate that it conducted an adequate examination to fully inquire into plaintiffs knowledge
of facts pertinent to DUPONT’s liability, While defendant asked various questions tending to
show a lack of liability on the basis of having supplied materials or having retained control of
plaintiffs work, it failed utterly to inquire as to whether DUPONT employees engaged in any
activities that would have directly caused plaintiff to be exposed to asbestos.. Defendant failed
to ask if plaintiff saw anyone else—most particularly Dupont employees-- working with or
disturbing insulation materials. Had defendant.asked the plaintiff this questions, plaintiff would
have testified that he saw DUPONT laborers wearing DUPONT hats and shirts sweeping up
insulation and mud that he was applying in clase proximity to him (PSS No. 15.) Instead, based
on its failure to conduct a proper examination of the plaintiff, defendant assumed that because
plaintiff did not identify DUPONT employees working with gaskets, packing, “heavy
equipment,” glues, adhesives, or drywall, it bears no liability in this case. Since defendant
failed to conduct proper examination of the plaintiff, it has failed to-shift its burden of showing

that plaintiff does not have evidence to prove his case.

THERE ARI TRIABLE ISSUES OF MATERIAL FACT
THAT DQ NOT ENTITLE THE DEPENDANT TO SUMMARY JUDGMENT

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.”
(Zurla v. Jon Douglas Co. (1998) 65 Cal.App.4th 1069, 1076-77, emphasis added.) “The
primary duty of the trial 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.)

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PLAINTIFF'S MEMORANDUM OF pom TS AND AUTHORITIES IN OPPOSITION TO DEFENDANT E.1. DU PONT DE NEMOURS'S.
MOTION FOR SUMMARY JUDGMEN’CoD Oe NH YH BR WN

Here, the plaintiff has indicated that he saw DUPONT laborers, whom he identified as
employed by DUPONT based on the hard hats and clothes they were wearing as working within
two to eight feet of him (PSS No.15-17.) Plaintiff saw these DUPONT laborers sweeping up
insulation debris, which included mud, pieces of the half-round white insulation he was
applying, and dust that resulted from cutting the half-round pipe insulation he was working
with, (PSS No. 15-17.) The plaintiff has indicated that the enviornment around him became
very dusty and that he does not recall wearing a mask of any kind (PSS No. 17 & 19.) The only
mask that plaintiff had worn on past occasions had been-a 3M single-band paper mask, which
plaintiff had indicated would not have prevented air from coming in through the sides of the
mask (PSS No. 19.). Given that plaintiff's work with the insulation took place between 1965
and 1967, it is more likely than not that the white half-round insulaiton and mud that plaintiff
was using to insulate the pipes was, more likely than not, asbestos-containing. Though plaintiff
does not recall whether-he wore a mask, even if he did wear the 3M paper single band paper
mask that he had previously wore, it would not have not have prevented hin from respirable
asbestos fibers (PSS No.20.) It is more likely than not that plaintiff was exposed to respirable
asbestos fibers as result of the sweeping up of the insulation debris performed by DUPONT
laborers.(PSS No. 21.) '

“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.”

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

sufficiency of affidavits filed in connection with the 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 favor of the party opposing the
motion. (Id., emphasis added.) Additionally, the facts alleged in the affidavits of the party
opposing the metion must be accepted as true. (Herber v. Yaeger (1967) 251 Cal.App.2d
258, 262, emphasis added,).

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PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT E.I. DU PONT DE NEMOURS'S
MOTION FOR SUMMARY JUDGMENTDEFEND. HAS FAILED TO PROPERLY RAISE

AN AFFIRMATIVE DEFENSE THAT PLAINTIFF'S CLAIM IS BARRED
UNDER PROVISIONS OF THE LABOR CODE

Defendant seeks to raise, solely by means of a footnoted,mention, an affirmative defense
that plaintiff's action is barred under exclusivity provisions of the Labor Code relating to
workplace injurics. Defendant’s.effort dies aborning due to several defects.

To begin with, defendant adduces no fact among its Separate Statement of Undisputed
Material Facts that plaintiff was an employee of DUPONT at the time of his injury, Without
adducing such fact, defendant has failed to properly put a claim of Workers’ Compensation bar
at issue.

Should the court be inclined to consider the affirmative defense, defendant has failed to
present necessary evidence to establish all of the requisite clements for such a defense. The
exclusivity provisions of the Labor Code are applicable for workplace injuries to ‘an employee
only if certain conditions arc met. Among those are a requirement that the employer must have
secured payment of compensation. (Labor Code Sections 3602(a), and 3706. Labor Code
Section 3700 provides that securing payment of compensation may only be accomplished by
holding a policy of insurance or by having secured a certificate of consent to self insure from
the Director of Industrial Relations. Defendant has offered no evidence of any sort that, at the
time of plaintiff's injury, it was in compliance with Labor Code 3700 and entitled to claim the
benefits of the exclusivity provisions otherwise. It has not met its obligation to provide
admissible evidence in support of all elements of its claimed affirmative defense.

Even should the court find that defendant hag satisfactorily raised the defense, plaintiff
has responded with evidence demonstrating a triable issue of material fact that he was not an
employee of DUPONT at the time of his injury. Notwithstanding his testimony suggesting that
he was employed by DUPONT, plaintiff has provided a more than plausible account that such
testimony was errroncous. Plaintiff's explanation, corroborated in all respects by his Social
Security records, provide more thari enough basis to put the issue of his employment status
before a trier of fact.
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PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION 1 TO OFFENDANT EJ. DU PONT DE NEMOURS’S
MOTION FOR SUMMARY JUDGMENTCoe YW A nF WN =

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CONCLUSION
Defendant DUPONT has failed to show that plaintilf does not have, and cannot obtain, a
prima facie case against it. Defendant has not shifted its burden of response, and there are
triabie issues of material fact as to its liability for plaintiffs claims. Plaintiff therefore
respectfully requests that the Court deny defendant’s Motion for Summary Judgment.
Dated: 3/8/10 BRAYTONPURCELL LLP

By: Mot. Cast. Yr
Siddharth Jhans
AttOmeys 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 -

contestasbestos TR@braytonlaw.com.}

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PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT E.L DU PONT DE NEMOURS’S ~
MOTION FOR SUMMARY JUDGMENT