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  • CHARLES TOBEY VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON EXHIBITS et al ASBESTOS document preview
  • CHARLES TOBEY VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON EXHIBITS et al ASBESTOS document preview
  • CHARLES TOBEY VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON EXHIBITS et al ASBESTOS document preview
  • CHARLES TOBEY VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON EXHIBITS et al ASBESTOS document preview
  • CHARLES TOBEY VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON EXHIBITS et al ASBESTOS document preview
  • CHARLES TOBEY VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON EXHIBITS et al ASBESTOS document preview
  • CHARLES TOBEY VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON EXHIBITS et al ASBESTOS document preview
  • CHARLES TOBEY VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON EXHIBITS et al ASBESTOS document preview 
						
                                
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                                510-658-3600

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MARK S. KANNETT (SBN 104572)
EMILY D. BERGSTROM (SBN 191385)

MARCIA L. RAYMOND (SBN 215655) ELECTRONICALLY
BECHERER, KANNETT & SCHWEITZER FILED
1255 Powell Street Superior Court of California,
Emeryville, CA 94608 County of San Francisco
Telephone: (510) 658-3600 cosetn 29,2009. ‘
imile: -LI, Cler!
Facsimile: (510) 658-1151 BY ANNIE PASCUAL
Deputy Clerk
Attorneys for Defendant
DILLINGHAM CONSTRUCTION N.A., INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO — UNLIMITED JURISDICTION
CHARLES TOBEY, ) CASE NO. CGC 07-274226
)
Plaintiff, ) SEPARATE STATEMENT OF
) UNDISPUTED FACTS IN SUPPORT OF
“VS. ) DILLINGHAM CONSTRUCTION, N.A.,
) INC.’S MOTION FOR SUMMARY
ASBESTOS DEFENDANTS (B“P) As }) JUDGMENT
Reflected on Exhibits B, B-1,C,H,!;and )}
DOES 1-8500; and SEE ATTACHED LIST.) Date: December 18, 2009
) Time: 9:30 a.m.
) Dept.: 302
) Judge: Hon. Charlotte Woolard
)
)} Complaint
) Filed: June 5, 2007
) Trial Date: January 19, 2010
)

Pursuant to California Code of Civil Procedure Section 437c(b)(1), Defendant
DILLINGHAM CONSTRUCTION, N.A., INC. (‘DILLINGHAM’) submits the following
Separate Statement of Undisputed Material Facts in support of its Motion for Summary
Judgment. .

Plaintiff has no evidence that defendant DILLINGHAM caused injury to
CHARLES TOBEY by exposure to asbestos and he is unlikely to obtain such

SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF
DILLINGHAM CONSTRUCTION, N.A., INC.’S MOTION FOR SUMMARY JUDGMENTBecherer
Kannett &
Schweitzer

18s
Powell St
Emeryville, CA
34608

510-658-3600

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evidence.

MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE AND
MATERIAL FACTS AND SUPPORTING SUPPORTING EVIDENCE
EVIDENCE ee

1. On June 5, 2007, Charles Tobey, 1.
(hereinafter “Plaintiff”) filed his

Complaint for Personal Injury —

Asbestos.

See Plaintiff's Complaint, attached as

Exhibit A to the Declaration of Marcia L.
Raymond (hereinafter “Raymond Dec!.”).

2. Plaintiff's complaint alleges 2.
“Negligence,” Strict Liability,” “False
Representation,” and “Premises

Liability” causes of action, as well as,
claims for punitive damages against
Dillingham for allegedly exposing Mr.
Tobey to asbestos and asbestos-
containing products.

See Plaintiffs Complaint, attached as

Exhibit A to the Declaration of Marcia L.
Raymond (hereinafter “Raymond Deci.”).

3. Dillingham filed its Answer to 3.
Plaintiff's complaint on August 9, 2007.

See Defendant Dillingham Construction

N.A., Inc’s Answer to Plaintiff's Compiaint,
attached as Exhibit B to the Raymond

Decl.

4, Inhis responses to Set One and Set 4.
Two Standard Interrogatory Responses

and Amended Supplemental Responses.

to said discovery, Plaintiff failed to
specifically identify the mode or manner

of the alleged exposure, or provide the
brand name or manufacturer of any
asbestos-containing product allegedly
supplied, disturbed or installed by a
Dillingham employee.

See Plaintiff's Responses to Standard Set

One and Set Two Standard interrogatories, +
and amended supplemental responses to

Set One and Set Two Standard
Interrogatories, attached as Exhibits C, D

and E, respectively, to the Raymond Decl.

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SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF
DILLINGHAM CONSTRUCTION, N.A., INC.’S MOTION FOR SUMMARY JUDGMENT510-658-3600

wo on na FF WN

De ee ee eee ea
Se eNYauraR wNHeH OC

MOVING PARTY’S UNDISPUTED
MATERIAL FACTS AND SUPPORTING
EVIDENCE

5. Plaintiff's Responses to Special
interrogatories and Requests for
Production of Documents propounded
by Dillingham are similarly devoid of
any specific evidence of Dillingham’s
liability in this case. They merely set
forth general accusations, but, again,
do not provide specifics such as the
mode or manner of the alleged
exposure, or provide the brand name or
manufacturer of any asbestos-
containing product allegedly supplied,
disturbed or installed by a Dillingham
employee in Mr. Fobey’s presence,

See Plaintiff's Responses to Dillingham’s
Request for Document Production and
Special interrogatories, attached as
Exhibits F and G, respectively, fo the
Raymond Decl.

6. Plaintiff's responses to discovery
requests propounded by Dillingham are
also inconsistent with his deposition
testimony.

See Plaintiffs Responses to Dillingham’s
Request for Document Production and
Special interrogatories, attached as
Exhibits F and G, respectively, to the
Raymond Deci.

7. Mr. Tobey’s responses to
Dillingham’s Request for Production of
Documents and Special Interrogatories
indicate that Dillingham and C. Norman
Peterson exposed him to asbestos
containing materials.

See Plaintiffs Responses to Dillingham’s
Request for Document Production and
Special Interrogatories, attached as
Exhibits F and G, respectively, to the
Raymond Decl.

8. Mr. Tobey’s deposition testimony
clearly indicates that he did not see any
Dillingham or C. Norman Peterson
employees performing hands-on work

OPPOSING PARTY’S RESPONSE AND
SUPPORTING EVIDENCE

3

SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF
DILLINGHAM CONSTRUCTION, NLA, INC.’S MOTION FOR SUMMARY JUDGMENT510-658-3600

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MOVING PARTY’S UNDISPUTED
MATERIAL FACTS AND SUPPORTING
EVIDENCE

in his presence.

See Excerpts from the deposition
testimony of Charles Tobey at p. 1031:12-
18, attached as Exhibit H to the Raymond
Decl.

9. Mr. Tobey testified that he never
heard of Dillingham Construction or C.
Norman Peterson.

See Excerpts from the deposition
testimony of Charles Tobey at p. 1031:12-
18, attached as Exhibit H to the Raymond
Decl.

10. Mr. Tobey’s co-worker, Phillip
Talley, also testified that he has not
information the Mr. Tobey ever worked
at the same jobsite as an employee of
either Dillingham or C. Norman
Peterson.

See Excerpts from the deposition
testimony of Phillip Talley at p. 187:3-9, 11-
21, attached as Exhibit | fo the Raymond
Decl.

Dated: September 29, 2009

OPPOSING PARTY’S RESPONSE AND
SUPPORTING EVIDENCE

BECHERER, KANNETT & SCHWEITZER

Warcia L. Rayryfond
Attorneys for Defendant
DILLINGHAM CONSJRUCTION, N.A., INC.

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SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF
DILLINGHAM CONSTRUCTION, N.A., INC.’S MOTION FOR SUMMARY JUDGMENTB

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PROOF OF SERVICE BY ELECTRONIC TRANSMISSION

i, Barbara Golstein, declare that | am, and was at the time of service of the
documents herein referred to, over the age of 18 years, and not a party to the action;
and | am employed in the County of Alameda, State of California. My business address
is 1255 Powell Street, Emeryville, California 94608.

On September 29, 2009, | electronically served the document(s) via LexisNexis
File & Serve described as:

e SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF
DILLINGHAM CONSTRUCTION N.A., INC.’S MOTION FOR SUMMARY
JUDGMENT

on the recipients designated on the Transmission Receipt located on the LexisNexis File
& Serve website.

| declare under penaity of perjury pursuant to the laws of the State of California

that the foregoing is true and correct and that this deciaration was executed on
September 29, 2009, at Emeryville, California.

Wiss

arbara Golstein

5

SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF
DILLINGHAM CONSTRUCTION, N.A., INC.’S MOTION FOR SUMMARY JUDGMENT