On June 05, 2007 a Motion,Ex Parte was filed involving a dispute between Tobey, Charles, and Abhi-Crockett, Inc., Albay Construction Company, All Asbestos Defendants-See Attached Documents, Allis-Chalmers Corporation Product Libility Trust, Asbestos Corporation Limited, Asbestos Corporation Ltd., Asbestos Defendants, A.W. Chesterton Company, Bayer Cropscience Inc., Bayer Cropscience, Inc., Successor To Amchem, Bechtel Corporation, Bucyrus International Inc, Cbs Corporation, A Delaware Corporation,, C.C. Moore & Co. Engineers, Cheveron Products Company, Chevron U.S.A. Inc., Chrysler Llc, Coltec Industries, Inc., Consolidated Insulation, Inc., Crown Cork & Seal Company, Inc., Csk Auto, Inc., Dillingham Construction N.A., Inc., Does 1-8500, Douglass Insulation Company, Inc., Durabla Manufacturing Company, Inc., E.I. Du Pont De Nemours And Company, Fluor Corporation, Foley-Pmi, Inc, Foley-Pmi, Inc., Ford Motor Company, Foster Wheeler Llc, Garlock Sealing Technologies, Llc, General Dynamics Corporation, General Electric Company, General Motors Corporation, Goodloe E. Moore, Inc., Hanson Permanente Cement, Inc., Honeywell International Inc.,Fka Alliedsignal,Inc., Hopeman Brothers, Inc., Intricon Corporation, J.T. Thorpe & Son, Inc., Kaiser Gypsum Company, Inc., Lamons Gasket Company, Metalclad Insulation Corporation, Metropolitan Life Insurance Company, Occidental Chemical Corporation, Oscar E. Erickson, Inc., Owens-Illinois, Inc., Pacific Gas And Electric Company, Parker-Hannifin Corp., Plant Insulation Company, Quintec Industries, Inc., Riley Power Inc., Riley Power, Inc., Santa Fe Braun, Inc., Scott Co. Of California, Sequoia Ventures Inc., Shell Oil Company, S.T.M. Automotive, Stm Automotive, Inc., The Dow Chemical Company, The Goodyear Tire & Rubber Company, The Lunkenheimer Company, Thermon Manufacturing Co., Thomas Dee Engineering Company, Unocal Corporation, Waldron Duffy Inc, Zurn Industries, Llc,, for civil in the District Court of San Francisco County.
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oOU wm ND BR WON 1555 eee Bw N = PO BOX 6169 NOVATO, CALIFORNIA 94943-6169 a ATTORNEYS AT LAW 222 RUSH LANDING ROAD an BRAYTON® PURCELL eC wm te So woN YN NON NN SQA A RY NH ALAN R. BRAYTON, ESQ., S.B. #73685 DAVID R, DONADIO, ESQ, S.B. #154436 RENE J. CASILLI, ESQ., S.B. #261779 ELECTRONICALLY BRAYTON**PURCELL LLP Attorneys at Law ‘ F ILE D 222 Rush Landing Road Superior Court of California, P.O. Box 6169 County of San Francisco Novato, California 94948-6169 MAR 25 2010 415) 898-1555 : Clerk of the Court Contative Ruling Contest Email: contestasbestosTR@braytonlaw.com py. ENNALEEN JAVIER woe Deputy Clerk Attomeys for Plaintiff SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO CHARLES TOBEY, ASBESTOS No. CGC-07-274226 Plaintiff, PLAINTIFF'S EVIDENTIARY OBJECTIONS TO DEFENDANT FLUOR CORPORATION’S MOTION FOR SUMMARY IUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION v8. ASBESTOS DEFENDANTS (BYP) Date: April 8, 2010 Time: 9:30am. Dept.: 220, Hon. Harold E, Kahn Trial Date: May 10, 2010 Action Filed: June 5, 2007 Plaintiff hereby submits the following objections to the evidence offered by defendants in support of their Motion for Summary Judgment, pursuant to CRC Rule 3.1354. A determination of whether evidence submitted should be disregarded depends, in part, on the submitting party because “the moving party’s papers are strictly construed, while the opposing party’s papers are liberally construed.” (Emphasis added). Comm. to Save the Beverly Highlands Homes Ass'n v. Beverly Highlands Homes Ass'n. (2001) 92 Cal. App. 4th 1247, 1260 (citing to Salazar v, Southern Cal, Gas Co. (1997) 54 Cal. App. 41h’ 1370, 1376. Furthermore, summary judgment must be decided only on admissible evidence and the same evidentiary rules that apply at trial also apply to whether evidence submitted in support of a motion for summary K:lliared\107356\phdievis-obf-FLUOR nes wpd 1 PLAINTIFE’S EVIDENTIARY OBJECTIONS TO DEFENDANT FLUOR CORPORATION’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONeo TN DH BY Ww RN RP NY NY NN DB ND Oe me ee Re ee SoS QD AB A FF WH NY * SF GO wD DA FF YW NY - judgment is admissible. Guthrey v. State of Californig (1998) 63 Cal. App. 4th 1108, 1120, Havman v. Block (1986) 176 Cal. App. 3d 629, 638. OBJECTION NO, 1: Material Objected to: Declaration of Howard Spielman, in support of Motion for Summary Judgment or in the Alternative Summary Adjudication Grounds for Objection: Lacks Foundation: Plaintiff objects to, and moves to strike in its entirety, the declaration of Howard Spielman, attached to defendant’s moving papers. This document lacks foundation (Ev. Code. § 702(a).) Mr. Spielman does not state how his credentials as an Industrial Hygienist provide him with any foundation for his statements, nor whether he acquired any knowledge, reviewed any documents, or spoke to any persons in order to lay an adequate foundation. Mr. Spielmant does not give the basis for his conclusory statement that an incident in which he concedes FLUOR is liable to plaintiff for exposing him to respirable asbestos fibers is not a substantial § factor in causing his asbestos related injury. The declaration does not present the requisite foundation, thus it is inadmissible. COURT’S RULING ON OBIECTION NO. 1: Dated: . Sustained: Overruled: OBJECTION NO. 2: Material Objected to: Declaration of Howard Spielman, in support of Motion for Summary Judgment or in the Aiternative Summary Adjudication Grounds for Objection: Conclusory: Plaintiff objects to, and moves to strike in its entirety, the declaration of Howard Spielman attached to defendant’s moving papers. This document is conclusory and without the requisite supporting evidentiary facts and such conclusions of law and fact are not sufficient to support a motion for summary judgment. See, for example, Guthrey, supra, at 1119-1120; Coiby v. Schwartz (1978) 78 Cal. App. 3d 885, 889; Redes v. Shannon (1961) 194 Cal. App.2d 743, 748. Mr. Spielman states that Plaintiff CHARLES TOBEY’s exposure to asbestos, if any, as a result of FLUOR laborers at Sequoia Refinery on one occasion could not have been a K.njured 07 SeipktevideobiFLUOR ns wed 2 PLAINTIFF"S EVIDENTIARY OBJECTIONS TO DEFENDANT FLUOR CORPORATION'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION °2 2 w® N DY & YN substantial factor in his illness. This is merely conclusory statement of law and fact and is insufficient to support summary judgment. An expert witness declaration that does not include factual explanation of how their conclusions were reached is not sufficient. Johnson v. Superior Court, (2006) 143 Cal. App. 4th 297, 307-308 [“[A]n expert's opinion rendered without a reasoned explanation of why the underlying facts lead to the ultimate conclusion has no evidentiary value because an expert opinion is worth no more than the reasons and facts on which it ‘s based (citation omitted).” (Emphasis added).] See also, Andrews v. Foster Wheeler. LLC (2006) 138 Cal.App.4” 96, 108. While Mr. Spielman cites some of the facts listed in defendant’s separate statement, he does not explain how or why these facts led him to conclude that FLUOR’s liability for Plaintiffs exposure to asbestos is limited to an isolated meident nor does he explain how or why it could not be a substantial factor in his asbestos related disease. There is no reasoned explanation; thus, the declaration is inadmissible. , COURT’S RULING ON OBJECTION NO. 2: Dated: Sustained: __ Overruled: OBJECTION NO. 3: Material Objected to: Declaration of Howard Spielman, in support of Motion for Summary Judgment or in the Alternative Summary Adjudication Grounds for Objection: Irrelevant: ““Relevant evidence’ means evidence . . . having any tendency in reason to prove or disprove ariy disputed fact that is of consequence to the determination of the action.” Evidence Code §210. Evidence Code §350 further states: “[nJo evidence is admissible except relevant . evidence.” Here, the Declaration of Howard Spielman is irrelevant in its entirety. In this case, Mr. Minster, plaintiff's co-worker, testified that FLUOR pipefitters cleaned up dust, dirt and debris-on a continuing basis, every day while he and the plaintiff were employed there. (Deposition of John Minster taken in this case on September 8, 2009, Vol. 1, p.p.91:1-2, attached as Exhibit B to Casilli Declaration.) This fact alone refutes Mr. Spielman’s assertion that “the only opportunity for Mr. TOBEY to have been exposed to asbestos as a result of KAlnjureds 10735 ipld\evid-obj. FLUOR msj.wpe PLAINTIFF'S EVIDENTIARY OBJECTIONS TO DEFENDANT FL.UOR CORPORATION'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION0 mW WD DA MH BR WN Poe oe Reo oO 13 FLUOR employees was” on one specific occasion recalled by Mr. Minster in deposition. Mr. Spielman’s declaration and the opinions contained therein are based on an artificial selection of facts, in opposition to the truth of the facts presented and known. Therefore, Mr. Spielman’s declaration is irrelevant and inadmissible. COURT’S RULING ON OBJECTION NO. 3: Dated: Sustained: Overruled: Dated: Bes fre BRAYTON*PURCELL LLP By: tows (hs UL: Rérie J Casilli Attorneys for Plaintiff Kniyre ds 073SSioldevideeb-FLUOR sj wpd 4 PLAINTIFE’S EVIDENTIARY OBJECTIONS TO DEFENDANT FLUOR CORPORATION'S MOTION FOR SUMMARY JUDGM' OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION DOMENT