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BRAYTON@PURCELL LLP
ATTORNEYS ATLAW
222 RUSH LANDING ROAD
PO BOX 6169
NOVATO, CALIFORNIA 94948-6169
(415) 898-4555
So Owe NO eR DW Dm
ALAN R. BRAYTON, ES'
DAVID R. DONADIO, ES
.. S.B. #73685
, 8.B. #154436
LANCE R. STEWART, ESQ, SB. #262124
BRAYTON%*PURCELL LLP’ FILED
Attorneys at L 2a Superior Court of California,
23 Rush Landing Road County of San Francisco
10. Box.
Novato, California 94948-6169 OCT 30 2009
(415) 898-1555 GORDON PARK-LI, Clerk
BY: EDNALEEN JAVIER
Attorneys for Plaintiff Deputy Clerk
SUPERIOR COURT OF CALIFORNIA.
COUNTY OF SAN FRANCISCO
GODOFREDO PIQUE, ) ASBESTOS
) No. 274659
Plaintiff, )
) PLAINTIFF’S MEMORANDUM OF
vs. ) POINTS AND AUTHORITIES IN
} OPPOSITION TO DEFENDANT PACCAR
ASBESTOS DEFENDANTS (BYP) INC.*S MOTION FOR SUMMARY
CCARamsj umd
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ELECTRONICALLY
JUDGMENT OR, IN THE
ALTERNATIVE, SUMMARY
ADJUDICATION
Date: November 13, 2009
Time: 9:30 a.m,
Dept: 301
Trial Date: December 14, 2009
Action Filed: May 8, 2008
IRS
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PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT PACCAR INC.'S MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONou Om NADH BR OY ON
TABLE OF CONTENTS.
1. INTRODUCTION 2.0.00. 6 cee eee teen nnn eeeee 1
IL. STATEMENT OF FACTS . 2
TIL LEGAL ARGUMENT . 1... 0 ieee cece nner e etter nee 4
A. THE SCOPE OF PACCAR-INC,’S MOTION IS LIMITED TO
THE ISSUES. PRESENTED IN ITS SEPARATE STATEMENT
OF UNDISPUTED MATERIAL FACTS 2.0.0... cece eee eee 4
B. PACCAR, AS THE MOVING PARTY, FAILED TO CARRY ITS
THRESHOLD BURDEN OF SHOWING THAT PLAINTIFF
CANNOT ESTABLISH ONE OR MORE ELEMENTS OF
THEIR CAUSES OF ACTION BY ANY MEANS .............00.00 0005 6
Cc. PLAINTIFF’S EVIDENCE DEMONSTRATES THAT
TRIABLE ISSUES OF MATERIAL FACT EXIST
REGARDING MR. PIQUE’S EXPOSURE TO ASBESTOS FOR
WHICH PACCAR IS LIABLE ... 0... 9
CONCLUSION 0. ccc een et nee e nee 1
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PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT PACCAR INC.’S MOTION FOR
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TABLE OF AUTHORITIES
CASES
Aguilar v. Ailantic Richfield Co. (2001) 25 Cal.4th 826, 843 000... e eee 6,7
Black v. Sullivan (1975) 48 Cal-App.3d 557,567 oo cece ene ae 9
Bunzel v. Am. Academy of Orthopedic Surgeons (1980) 107 Cal.App.3d 165,169 ......,. 6
Chevron U.S.A., Inc. v. Super. Ct. (Cobb) (1992) 4 Cal.App.4th 544,548 2... eee 7
Conn v. National Can Corp. (1981) 124 Cal App.3d 630, 638 0.0.0... cee eee 4
Fleet v. CBS, Inc. (1996) 50 Cal.App.4th 1911, 1916 Leet eee reenter teen ene eee 5
Furla v. Jon Douglas Co. (1998) 65 Cal. App.4th 1069, 1076-77 2.0.0.0... cece cee ee 9
Hayman v. Block (1986) 176 Cal. App.3d 629, 639 02.00. 6
Herber v. Yaeger (1967) 251 Cal. App.2d 258, 262 00000 ccc cece eeeeeeeeeeeee 9
Hunter v, Pacific Mechanical Corp. (1995) 37 Cal.App.4th 1282, 1288.00.00... .....0005 7
Joslin v. Marin Municipal Water District (1967) 67 Cal.2d 132,147 ...............00005 9
Juge v. County of Sacramento (1993) 12 Cal.App.4th 59,66 200... eee eeee 4
North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 31 ....... 5
San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316 ... 5
Walsh v. Walsh (1941) 18 Cal.2d 439 0000 cece eee ee 9
STATUTES :
California Code of Civil Procedure § 4376 2.0 bn renee 4
California Code of Civil Procedure § 437cfc) 20... c cc eee teens 6, 11
California Code of Civil Procedure § 437c(pX2) 0. eect eee 11
California Rules of Court, Rule 342(0) 0.00.00 n teenies 5
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PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT PACCAR INC.°S MOTION FOR.
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INTRODUCTION
Defendant PACCAR INC.’s entire Motion for Summary Judgment and Motion for the
Alternative, Summary Adjudication for Counts One and Two, Negligence and Strict Liability',
is based on the argument that plaintiff GODOFREDO PIQUE cannot present evidence that he
was exposed to asbestos by the brake systems on defendant’s Peterbilt or Kenworth trucks,
simply because plaintiff did net personally perform work on those brake systems himself.
Defendant’s argument is flawed, because it assumes that exposure results only from the actual
performance of such work. In fact, exposure to the mechanics performing such work, and to
Mr. PIQUE, who was nearby, resulted from the release of airborne asbestos fibers in the dust
created during the replacement work.
The evidence against defendant PACCAR INC. (“PACCAR”) is consistent: Plaintiff
stated in both deposition testimony and interrogatory responses that, and repeats in his
declaration, that, while employed ai Alitrans between 1973 and 1974, he worked in close
proximity to mechanics who removed and replaced brake assemblies on defendant’s Kenworth
and Peterbilt trucks, and that he saw these brake replacements performed frequently in the
maintenance shop where he worked. Defendant asserts that, because plaintiff “did not
personally perform any work to any brake, clutch or engine components” on defendant’s
vehicles, plaintiff “cannot establish exposure to asbestos attributable to PACCAR,” and.
therefore “cannot establish the element of causation.” Defendant’s argument ignores plaintiffs
repeated and consistent testimony, and focuses on an absence of evidence for allegations which
were never made. : '
Defendant attempts to negate plaintiff's otherwise-sufficient evidence of exposure to
asbestos from PACCAR products through a declaration comprised of inadmissible hearsay. The
declaration purports to provide a factual account from a Mr. Leon Simpson, but does so only
‘Plaintiff's causes of action for False Representation and Punitive Damages have been dismissed, and
Defendant’s motion on these grounds is now moot.
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PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT PACCAR INC,’S MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONoD OW NAW BRB YW N =
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through the second- or third-hand recitation of Mr. Simpson’s purported statements by the
actual declarant. Even if an admissible declaration from Mr. Simpson himself had been
produced by defendant, it would serve to do no more than factually dispute plaintiff's account
regarding the presence of PACCAR-manufactured Peterbilt and Kenworth trucks. As such,
even an admissible declaration would do nothing more than demonstrate that there is a disputed
issue of material fact as to this issue.
Plaintiff concedes the absence of evidence to support Count Three, False
Representation, and agree to dismissal of this cause of action. Plaintiff further stipulates that he
will not pursue an award of punitive dams against this defendant. Defendant has otherwise
failed to carry its burden that plaintiff does not present and cannot present evidence in support
of his claims against defendant PACCAR. In addition, disputed issues of material fact remain,
and defendant PACCAR is not entitled to summary judgment as a matter of law.
i
STATEMENT OF FACTS
Plaintiff, GODOFREDO PIQUE, worked as a utility/lube man/shop helper for Alltrans
Express, USA, Inc. in San Francisco, California, from approximately July 1973 until September
1974. (Deposition of Plaintiff Godofredo Pique, Volume IV, taken on August 13, 2008, 548:16
- 549:13, attached as Exhibit A to the Declaration of Nancy T. Williams. (“Exhibit A”).
Declaration of Plaintiff Godofredo Pique dated October 26, 2009, 42, attached as Exhibit B to
the Declaration of Nancy T. Williams. (“Exhibit B”)) The shop plaintiff worked in for
Alltrans was very small, consisting of three bays. (Exhibit B, 43.)
Plaintiff recalls that PETERBILT and KENWORTH trucks were in use at Alltrans
during my employment there. (Newly Served Deposition of Plaintiff Godofredo Pique, Volume
I, taken on March 30, 2009, 102:17 - 19, attached as Exhibit C to the Declaration Nancy T.
Williams. (“Exhibit C.”) Exhibit B, 4.)
During this employment, plaintiff frequently observed mechanics employed by Alltrans
working with brakes on the vehicles in use at Alltrans, including removing and replacing
brakes. (Exhibit A, 553:13-24; 555:4-7. Exhibit B, {5.) Plaintiff observed Alltrans mechanics
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PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT PACCAR INC,'S MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADIUDICATIONom mI DH FF WN
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removing and replacing brakes on at least two KENWORTH tractor trailers. (Exhibit A,
581:10-16, 586:9-14. Exhibit C, 117:20- 118:6. Exhibit B, 46.)
Plaintiff frequently observed Alltrans mechanics removing and replacing brakes on at
least three PETERBILT tractors. As a result.of his own duties, and the size of the shop,
plaintiff was frequently working in close proximity to such brake work. Generally, plaintiff
observed this work from a distance of roughly three feet. (Exhibit A, 582:19-21, 586:9-14.
Exhibit C, 106:13 - 107:19. -Exhibit B, #7.)
On multiple occasions during his employment at Alltrans, plaintiff observed Alltrans
mechanics sanding brakes prior to installing them on tractors in use at Alltrans, including
PETERBILT and KENWORTH tractors. Plaintiff was roughly three feet away from this work, .
for a period of roughly ten minutes per set of brakes. (Exhibit A, 589:7-592:4. Exhibit B, 78.)
Plaintiff recalls that the manner in which Alltrans mechanics removed brakes from
PETERBILT and KENWORTH trucks was as follows: Alltrans mechanics removed the tires
and wheel from the vehicles, and removed all related hardware. Alltrans mechanics then used
compressed air to clean the brake drums of the vehicles. Alltrans mechanics then replaced the
entire brake assembly, including the brake shoes and brake lining. Plaintiff recalls that this
process created large amounts of visible dust. Plaintiff breathed in this dust. At no point during
his work at this time did plaintiff wear any type of mask or respiratory protection. (Exhibit B,
9)
While working as a lube man at F J Burns Draying, plaintiff observed, on multiple
occasions, the company’s mechanic removing and installing brake parts on a Peterbilt tractor.
(Exhibit A, 604:15 - 607:9. Exhibit B, #10)
Between 1930 and 1985, brake linings used on PACCAR’s KENWORTH and
PETERBILT vehicles contained chrysotile asbestos. (Defendant PACCAR, INC.’s Responses
to Plaintiff's Standard Interrogatories to All Defendants, dated Jan, 23, 2009, 39:6-20, attached
as Exhibit D to the Declaration of Nancy T. Williams. (Exhibit D.”))
/ Removal and disassembly of asbestos-containing friction assembliés, and specifically
brake friction parts, causes respirable fibers to be released. In addition, these fibers are
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PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TG DEFENDANT PACCAR INC.’S MOTION FOR
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constantly being accumulated and contained within the confines of inspection covers and the
crevices of friction assemblies themselves, thereby also exposing persons performing
adjustments and/or checks of these assemblies to the released fibers. The adjustment, cleaning,
and blowing out of friction assemblies is enough for one to be exposed: This is so even if one
does not personally perform such work, but is in close proximity to such work. Asbestos dust
would have been present in the brake areas of the vehicles due to the inevitable breakdown of
the friction parts. (Declaration of Charlie Ay, 46, dated Oct. 27, 2009, attached as Exhibit E to
the Declaration of Nancy T. Williams. (“Exhibit E.”))
Given Mr. PIQUE’s observation of and proximity to the removal and replacement of: ”
brakes on KENWORTH and PETERBILT vehicles; the presence of chrysotile asbestos in the
brake linings of such vehicles; the use of compressed air to clean the brake drums of such
vehicles, and presence of large amounts of visible dust, GODOFREDO PIQUE, was exposed to
respirable asbestos fibers by the performance of brake adjustment and replacement work on
KENWORTH and PETERBILT vehicles. (Exhibit E, 7-10.)
‘ Ti
- LEGAL ARGUMENT
A. THE SCOPE OF PACCAR INC.’S MOTION IS LIMITED TO THE ISSUES
PRESENTED IN ITS SEPARATE STATEMENT OF UNDISPUTED
MATERIAL FACTS
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
issués 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.” (Juge, *
12 Cal.App.4th at 67.)
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PLAINTIFE’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT PACCAR INC,’S MOTION FOR
SUMMARY JUDGMENT OR, §N THE ALTERNATIVE, SUMMARY ADJUDICATIONeo we IN DH PB WN =
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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 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.” (Code of Civ. Proc. 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.) Due process further requires the Court to
exclude any evidence which-was not timely served in accordance with Code of Civ. Proc.
§ 437c(a). (San Diego Watercrafis, 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.)
As to plaintiff’s.claim of Negligence and Strict Liability, defendant PACCAR argues
only that plaintiff has not presented evidence that he personally performed any brake, clutch, or
engine work on Peterbilt or Kenworth vehicle while employed at Alltrans between 1973 or
1974. ‘No other issues are properly before the Court to decide. Defendant does not dispute that
Mr. Pique has an asbestos-related disease. Defendant does not dispute that brake work was
performed on Peterbilt or Kenworth vehicles in his presence during his 1973 - 1974
employment at Alltrans, that the brakes contained asbestos, or that defendant PACCAR was
responsible for the asbestos-containing brakes on their PETERBILT and KENWORTH trucks.
The court is thus confined to determining the sole issue that defendant does raise: As a matter of
law, must an individual have performed brake work in order to have been exposed to asbestos as
a result of that brake work?
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PLAINTIFF'S MEMORANDIJM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT PACCAR INC.’S MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONSo BU we NAN BR YN Oe
B. PACCAR, AS THE MOVING PARTY, FAILED TO CARRY ITS
THRESHOLD BURDEN OF SHOWING THAT PLAINTIFF CANNOT
ESTABLISH ONE OR MORE ELEMENTS OF THEIR CAUSES OF
ACTION BY ANY MEANS
“The motion for summary judgment is a drastic measure which deprives the losing party
of a trial on the merits, (Bunzel v. Am. Academy of Orthopedic Surgeons (1980) 107 Cal.App.3d
165, 169.) Because of the drastic nature of the summary judgment procedure, “doubts as to the
merits of the motion should be resolved in favor of the party opposing the motion.” (Hayman v.
Block (1986) 176 Cal.App.3d 629, 639.} A motion for summary judgment shall be granted only
if “all the papers submitted show that there is no triable issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” (Code of Civ. Proc. § 437c(c).)
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, 843, the California Supreme Court “clarified the law that courts must apply in
ruling on motions for summary judgment.” The 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." (Id. 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. § 437e{o)(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 or may ‘be taken...."" (Id. at 855., quoting C.C.P.
§ 437c(b), italics in original.)
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PLAINTIFE’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT PACCAR INC.’S MOTION FOR,
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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.
(1995) 37 Cal.App.4th 1282, 1288, italics in original) does not reflect sammary judgment law
as it has ever stood, and is accordingly disapproved." (Id., fn 23.)
PACCAR, 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
motion must be denied, and if is unnecessary for the court to consider the plaintiff's
opposition, if any.” (Id., emphasis added.)
In ruling on the motion, the court must “consider all of the evidence” and “all” of the
“inferences” reasonably drawn therefrom, and must view such evidence in the light most
favorable to the opposing party. (Aguilar v. Atlantic Ritchield Company, supra 25 Cal.4th 826,
843.)
Here, defendant cannot successfully argue that plaintiff is unable to present evidence
establishing that PACCAR’s products caused or contributed to his exposure to asbestos, and
thereby to his injury. In asserting this peint, defendant states simply that “Plaintiff's discovery
responses and deposition testimony offer nothing more than general statements that he may
have been present while [sic] worked on Peterbilts and/or Kenworths at Alltrans between 1973
and 1974.” Defendant goes on to assert that plaintiff “never personally performed any work to
any brake, clutch or engine components,” and “never assisted with” any such work. Moreover,
defendant denies the existence of any testimony from plaintiff regarding exposure during his
employment at F J Burns Draying.
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PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION: v DEFENDANT PACCAR INC.’S MOTION TOR
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Defendant’s characterization grossly misrepresents the facts in evidence, minimizing or
ignoring crucial testimony. Plaintiff has testified extensively that he worked in close proximity
to the mechanics who rernoved and replaced brake assemblies in the Kenworth and Peterbilt
trucks at Alltrans. In response to PACCAR’s “all facts” interrogatory, plaintiff disclosed that,
as part of his employment for Alltrans Express, he refueled and changed tires on company
vehicles which included those supplied, manufactured and distributed by PACCAR, INC.
Plaintiff further disclosed that he worked in close proximity to the mechanics who removed and
replaced brake assemblies in the Kenworth and Peterbilt trucks; and that he saw these brake
replacements performed frequently in the maintenance shop where plaintiff worked. Plaintiff
further disclosed that brake dust created and built up by the use.and operation of defendant’s
KENWORTH and PETERBILT trucks was released by this work, and inhaled by plaintiff. At
no point has plaintiff testified that he “may” have been present while others performed brake
work on defendant’s vehicles; his consistent testimony has been that he was present for such
work. : -
In addition, plaintiff testified that he worked in close proximity to others performing
brake work on defendant’s trucks during his employment at F J Burns Draying from June to
September of 1973, (Exhibit A, 604:15 - 607:9; Exhibit B, §10.) Defendant erroneously denies
that such testimony exists.
Defendant, perhaps appreciating that it has otherwise failed to carry its burden, attempts
to negate plaintiff's otherwise-sufficient evidence of exposure to asbestos from PACCAR
products through a declaration comprised of inadmissible hearsay. The declaration purports to
provide a factual account from a Mr. Leon Simpson, but does so only through the second- or
third-hand recitation of Mr. Simpson’s purported statements by the actual declarant.
Even if an admissible declaration from Mr. Simpson himself had been produced by
defendant, it appears such a declaration would say nothing more than that Mr. Simpson does not
recall KENWORTH and PETERBILT vehicles being present at Alltrans. Plaintiff has testified
to the contrary. This is what is commonly known as a disputed issue of material fact.
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PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT PACCAR INC'S MOTION FOR.
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Defendant’s fundamental premise, that plaintiff cannot demonstrate exposure via the
removal and replacement of brake assemblies on defendant’s vehicles unless he personally
performed such work, is flawed. Defendant’s effort to negate the presence of PACCAR-
manufactured vehicles at Mr. Pique’s workplace is inadmissible, and, even if admissible, would
fail, Defendant has failed to meet its burden, and is not entitled to summary judgment as a
matter of law. ,
Cc. PLAINTIFF’S EVIDENCE DEMONSTRATES THAT TRIABLE ISSUES OF
SERIAL AS RST BEARING POU PAPOSURE To
If the Court should find that defendant has somehow shifted its burden to plaintiff, 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, 1076-77.) “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.)
“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.”
Goslin v. Marin Municipal Water District (1967) 67 Cal.2d 132, 147) “Tn 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 motion must be accepted as true. (Herber v. Yaeger (1967) 251 Cal. App.2d 258,
262, emphasis added.)
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The Court cannot conclude as a matter of law, based upon the evidence which plaintiff
submits in this matter, that triable issues of material fact do not exist. As presented in
plaintiffs opposition, triable issues of material fact as to Mr. PIQUE’s exposure to asbestos for
which PACCAR is liable as evidenced in the following documents:
(1) Plaintiff GODOFREDO PIQUE’s October 26, 2009 declaration testimony that
brake shoes and brake linings were removed from and installed on KENWORTH and
PETERBILT vehicles in his presence during his employment at Alltrans, and that such work
created visible dust; and
(2) The declaration of Charles Ay, dated October 28, 2009, regarding the likelihood that
such products would have contained asbestos, and that the processes observed by Mr. PIQUE
would have exposed him to respirable asbestos fibers.
Plaintiff has demonstrated, by way of declaration and deposition testimony, that plaintiff
worked in close proximity to mechanics who were performing original brake removals and
replacements on defendant’s PETERBILT and KENWORTH vehicles while he worked for
Alltrans Express in the 1970s. Defendant PACCAR does not dispute that, during the relevant
time frames, the brake assemblies on its Peterbilt tracks contained asbestos. (Defendant’s
Moving Papers, including Defendant's Separate Statement.) Mr. PIQUE has testified that he
frequently observed mechanics employed by Alltrans working with brakes on KENWORTH
and PETERBILT vehicles in use at Alltrans, and that he generally observed this work from a
distance of roughly three feet. (Exhibit A, 581:10-16, 582:19-21, 586:9-14; Exhibit C, 117:20 -
118:6; Exhibit B, 96, 7.) Mr. PIQUE has further testified that Alitrans mechanics used
compressed air to clean the brake drums of the vehicles, and that this process created large
amounts of visible dust, which he breathed in. (Exhibit B, 99.)
Moreover, the removal and disassembly of asbestos-containing friction assemblies, and
specifically brake friction parts, causes respirable fibers to be released. In addition, these fibers
are constantly being accumulated and contained within the confines of inspection covers and the
crevices of friction assemblies themselves, thereby also exposing persons performing
adjustments and/or checks of these assemblies to the released fibers. (Exhibit E, 6.) Defendant
Klniurehto9s0sipihopp-PACCAR. mind 10 :
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PLAINTIFF’°S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT PACCAR INC,'S MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONoO Oe UW DH FF YN
Ny N YY RN NR YOR SF = Be Be em eB Be Be Be
cn Aw BF BY HF So we ADH BBN HEH DS
has admitted that, between 1930 and 1985, brake linings used on PACCAR’s KENWORTH
and PETERBILT vehicles contained chrysotile asbestos, (Exhibit D, 39:6-20.) Given Mr.
PIQUE’s observation of and proximity to the removal and replacement of brakes on
KENWORTH and PETERBILT vehicles; the presence of chrysotile asbestos in the brake
linings of such vehicles; the use of compressed air to clean the brake drums of such vehicles,
and presence of large amounts of visible dust, it is more likely than not that Mr. PIQUE, was
exposed to respirable asbestos fibers by the performance of brake adjustment and replacement
work on KENWORTH and PETERBILT vehicles. (Exhibit E, 7-10.)
_ Asa result, the Court cannot conclude as a matter of law, based upon the evidence
which plaintiff submits in this matter, that triable issues of material fact do not exist.
CONCLUSION
For the reasons stated herein, plaintiff respectfully requests that this Court deny
defendant's Motion for Summary Judgment, as defendant failed to carry its burden under C.C.P.
§ 4370(c) and § 437c(p)(2) of proving that plaintiff does not have, and cannot prove, his prima
facie case against it. Defendant has not met its burden of proving that plaintiff's discovery
responses show that they lack evidence in support plaintiffs claims against defendant or that
plaintiff cannot reasonably obtain that evidence. Triable issues of material fact exist concerning
Mr. PIQUE’s asbestos exposure from PACCAR products.
Dated: 49 HU /O7 BRAYTO!
ance R.
Attorneys for Plaintiff
K Mnjured\10950Sipidhopp- PACCAR ras. wepd i
PLAINTIFFS MEMORANDUM OF PORNTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT PACCAR INC.’S MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
Preview
BRAYTON@PURCELL LLP ATTORNEYS ATLAW 222 RUSH LANDING ROAD PO BOX 6169 NOVATO, CALIFORNIA 94948-6169 (415) 898-4555 So Owe NO eR DW Dm ALAN R. BRAYTON, ES' DAVID R. DONADIO, ES .. S.B. #73685 , 8.B. #154436 LANCE R. STEWART, ESQ, SB. #262124 BRAYTON%*PURCELL LLP’ FILED Attorneys at L 2a Superior Court of California, 23 Rush Landing Road County of San Francisco 10. Box. Novato, California 94948-6169 OCT 30 2009 (415) 898-1555 GORDON PARK-LI, Clerk BY: EDNALEEN JAVIER Attorneys for Plaintiff Deputy Clerk SUPERIOR COURT OF CALIFORNIA. COUNTY OF SAN FRANCISCO GODOFREDO PIQUE, ) ASBESTOS ) No. 274659 Plaintiff, ) ) PLAINTIFF’S MEMORANDUM OF vs. ) POINTS AND AUTHORITIES IN } OPPOSITION TO DEFENDANT PACCAR ASBESTOS DEFENDANTS (BYP) INC.*S MOTION FOR SUMMARY CCARamsj umd / Vv ELECTRONICALLY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Date: November 13, 2009 Time: 9:30 a.m, Dept: 301 Trial Date: December 14, 2009 Action Filed: May 8, 2008 IRS KAlnjared Osa Sip opp PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT PACCAR INC.'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONou Om NADH BR OY ON TABLE OF CONTENTS. 1. INTRODUCTION 2.0.00. 6 cee eee teen nnn eeeee 1 IL. STATEMENT OF FACTS . 2 TIL LEGAL ARGUMENT . 1... 0 ieee cece nner e etter nee 4 A. THE SCOPE OF PACCAR-INC,’S MOTION IS LIMITED TO THE ISSUES. PRESENTED IN ITS SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS 2.0.0... cece eee eee 4 B. PACCAR, AS THE MOVING PARTY, FAILED TO CARRY ITS THRESHOLD BURDEN OF SHOWING THAT PLAINTIFF CANNOT ESTABLISH ONE OR MORE ELEMENTS OF THEIR CAUSES OF ACTION BY ANY MEANS .............00.00 0005 6 Cc. PLAINTIFF’S EVIDENCE DEMONSTRATES THAT TRIABLE ISSUES OF MATERIAL FACT EXIST REGARDING MR. PIQUE’S EXPOSURE TO ASBESTOS FOR WHICH PACCAR IS LIABLE ... 0... 9 CONCLUSION 0. ccc een et nee e nee 1 KNpjureshn09s0sipidiopp-PACCAR ete vend i a BS PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT PACCAR INC.’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONoO em NI AD AW RB BW Ye Cem AA RY HD von YN BPN MY YD eI Aw Bw DH HE S TABLE OF AUTHORITIES CASES Aguilar v. Ailantic Richfield Co. (2001) 25 Cal.4th 826, 843 000... e eee 6,7 Black v. Sullivan (1975) 48 Cal-App.3d 557,567 oo cece ene ae 9 Bunzel v. Am. Academy of Orthopedic Surgeons (1980) 107 Cal.App.3d 165,169 ......,. 6 Chevron U.S.A., Inc. v. Super. Ct. (Cobb) (1992) 4 Cal.App.4th 544,548 2... eee 7 Conn v. National Can Corp. (1981) 124 Cal App.3d 630, 638 0.0.0... cee eee 4 Fleet v. CBS, Inc. (1996) 50 Cal.App.4th 1911, 1916 Leet eee reenter teen ene eee 5 Furla v. Jon Douglas Co. (1998) 65 Cal. App.4th 1069, 1076-77 2.0.0.0... cece cee ee 9 Hayman v. Block (1986) 176 Cal. App.3d 629, 639 02.00. 6 Herber v. Yaeger (1967) 251 Cal. App.2d 258, 262 00000 ccc cece eeeeeeeeeeeee 9 Hunter v, Pacific Mechanical Corp. (1995) 37 Cal.App.4th 1282, 1288.00.00... .....0005 7 Joslin v. Marin Municipal Water District (1967) 67 Cal.2d 132,147 ...............00005 9 Juge v. County of Sacramento (1993) 12 Cal.App.4th 59,66 200... eee eeee 4 North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 31 ....... 5 San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316 ... 5 Walsh v. Walsh (1941) 18 Cal.2d 439 0000 cece eee ee 9 STATUTES : California Code of Civil Procedure § 4376 2.0 bn renee 4 California Code of Civil Procedure § 437cfc) 20... c cc eee teens 6, 11 California Code of Civil Procedure § 437c(pX2) 0. eect eee 11 California Rules of Court, Rule 342(0) 0.00.00 n teenies 5 KAtjuredh109505\pld\opp PACCAR-ce wt ii ——__________LES___ PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT PACCAR INC.°S MOTION FOR. SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONCo wm NU KH HA BW DY = RN NN RN ON KD DE Se Oe Be ee ee ee eo DAW SF BH |= Som NI NH FF wBWHY HF 1 INTRODUCTION Defendant PACCAR INC.’s entire Motion for Summary Judgment and Motion for the Alternative, Summary Adjudication for Counts One and Two, Negligence and Strict Liability', is based on the argument that plaintiff GODOFREDO PIQUE cannot present evidence that he was exposed to asbestos by the brake systems on defendant’s Peterbilt or Kenworth trucks, simply because plaintiff did net personally perform work on those brake systems himself. Defendant’s argument is flawed, because it assumes that exposure results only from the actual performance of such work. In fact, exposure to the mechanics performing such work, and to Mr. PIQUE, who was nearby, resulted from the release of airborne asbestos fibers in the dust created during the replacement work. The evidence against defendant PACCAR INC. (“PACCAR”) is consistent: Plaintiff stated in both deposition testimony and interrogatory responses that, and repeats in his declaration, that, while employed ai Alitrans between 1973 and 1974, he worked in close proximity to mechanics who removed and replaced brake assemblies on defendant’s Kenworth and Peterbilt trucks, and that he saw these brake replacements performed frequently in the maintenance shop where he worked. Defendant asserts that, because plaintiff “did not personally perform any work to any brake, clutch or engine components” on defendant’s vehicles, plaintiff “cannot establish exposure to asbestos attributable to PACCAR,” and. therefore “cannot establish the element of causation.” Defendant’s argument ignores plaintiffs repeated and consistent testimony, and focuses on an absence of evidence for allegations which were never made. : ' Defendant attempts to negate plaintiff's otherwise-sufficient evidence of exposure to asbestos from PACCAR products through a declaration comprised of inadmissible hearsay. The declaration purports to provide a factual account from a Mr. Leon Simpson, but does so only ‘Plaintiff's causes of action for False Representation and Punitive Damages have been dismissed, and Defendant’s motion on these grounds is now moot. Klnjured\l o9S05\pitiopp-PACCAR-ms] apd 1 ——___LRS___ PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT PACCAR INC,’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONoD OW NAW BRB YW N = VU Bw N = 16 through the second- or third-hand recitation of Mr. Simpson’s purported statements by the actual declarant. Even if an admissible declaration from Mr. Simpson himself had been produced by defendant, it would serve to do no more than factually dispute plaintiff's account regarding the presence of PACCAR-manufactured Peterbilt and Kenworth trucks. As such, even an admissible declaration would do nothing more than demonstrate that there is a disputed issue of material fact as to this issue. Plaintiff concedes the absence of evidence to support Count Three, False Representation, and agree to dismissal of this cause of action. Plaintiff further stipulates that he will not pursue an award of punitive dams against this defendant. Defendant has otherwise failed to carry its burden that plaintiff does not present and cannot present evidence in support of his claims against defendant PACCAR. In addition, disputed issues of material fact remain, and defendant PACCAR is not entitled to summary judgment as a matter of law. i STATEMENT OF FACTS Plaintiff, GODOFREDO PIQUE, worked as a utility/lube man/shop helper for Alltrans Express, USA, Inc. in San Francisco, California, from approximately July 1973 until September 1974. (Deposition of Plaintiff Godofredo Pique, Volume IV, taken on August 13, 2008, 548:16 - 549:13, attached as Exhibit A to the Declaration of Nancy T. Williams. (“Exhibit A”). Declaration of Plaintiff Godofredo Pique dated October 26, 2009, 42, attached as Exhibit B to the Declaration of Nancy T. Williams. (“Exhibit B”)) The shop plaintiff worked in for Alltrans was very small, consisting of three bays. (Exhibit B, 43.) Plaintiff recalls that PETERBILT and KENWORTH trucks were in use at Alltrans during my employment there. (Newly Served Deposition of Plaintiff Godofredo Pique, Volume I, taken on March 30, 2009, 102:17 - 19, attached as Exhibit C to the Declaration Nancy T. Williams. (“Exhibit C.”) Exhibit B, 4.) During this employment, plaintiff frequently observed mechanics employed by Alltrans working with brakes on the vehicles in use at Alltrans, including removing and replacing brakes. (Exhibit A, 553:13-24; 555:4-7. Exhibit B, {5.) Plaintiff observed Alltrans mechanics KcAUnjoresh109505pldtopp PACCAR- ms wpa 2 ad PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT PACCAR INC,'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADIUDICATIONom mI DH FF WN 10 removing and replacing brakes on at least two KENWORTH tractor trailers. (Exhibit A, 581:10-16, 586:9-14. Exhibit C, 117:20- 118:6. Exhibit B, 46.) Plaintiff frequently observed Alltrans mechanics removing and replacing brakes on at least three PETERBILT tractors. As a result.of his own duties, and the size of the shop, plaintiff was frequently working in close proximity to such brake work. Generally, plaintiff observed this work from a distance of roughly three feet. (Exhibit A, 582:19-21, 586:9-14. Exhibit C, 106:13 - 107:19. -Exhibit B, #7.) On multiple occasions during his employment at Alltrans, plaintiff observed Alltrans mechanics sanding brakes prior to installing them on tractors in use at Alltrans, including PETERBILT and KENWORTH tractors. Plaintiff was roughly three feet away from this work, . for a period of roughly ten minutes per set of brakes. (Exhibit A, 589:7-592:4. Exhibit B, 78.) Plaintiff recalls that the manner in which Alltrans mechanics removed brakes from PETERBILT and KENWORTH trucks was as follows: Alltrans mechanics removed the tires and wheel from the vehicles, and removed all related hardware. Alltrans mechanics then used compressed air to clean the brake drums of the vehicles. Alltrans mechanics then replaced the entire brake assembly, including the brake shoes and brake lining. Plaintiff recalls that this process created large amounts of visible dust. Plaintiff breathed in this dust. At no point during his work at this time did plaintiff wear any type of mask or respiratory protection. (Exhibit B, 9) While working as a lube man at F J Burns Draying, plaintiff observed, on multiple occasions, the company’s mechanic removing and installing brake parts on a Peterbilt tractor. (Exhibit A, 604:15 - 607:9. Exhibit B, #10) Between 1930 and 1985, brake linings used on PACCAR’s KENWORTH and PETERBILT vehicles contained chrysotile asbestos. (Defendant PACCAR, INC.’s Responses to Plaintiff's Standard Interrogatories to All Defendants, dated Jan, 23, 2009, 39:6-20, attached as Exhibit D to the Declaration of Nancy T. Williams. (Exhibit D.”)) / Removal and disassembly of asbestos-containing friction assembliés, and specifically brake friction parts, causes respirable fibers to be released. In addition, these fibers are KAInjurea\t09$05iphd\oop-PACCAR-msj pd 3 ——__IRS___ PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TG DEFENDANT PACCAR INC.’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADIUDICATIONDO Hm WN DA wn & Ww YD MON BW NY ND RB DN Rm mm me SC WA A BW NY = BD OD wo NHN DW Bw MY & constantly being accumulated and contained within the confines of inspection covers and the crevices of friction assemblies themselves, thereby also exposing persons performing adjustments and/or checks of these assemblies to the released fibers. The adjustment, cleaning, and blowing out of friction assemblies is enough for one to be exposed: This is so even if one does not personally perform such work, but is in close proximity to such work. Asbestos dust would have been present in the brake areas of the vehicles due to the inevitable breakdown of the friction parts. (Declaration of Charlie Ay, 46, dated Oct. 27, 2009, attached as Exhibit E to the Declaration of Nancy T. Williams. (“Exhibit E.”)) Given Mr. PIQUE’s observation of and proximity to the removal and replacement of: ” brakes on KENWORTH and PETERBILT vehicles; the presence of chrysotile asbestos in the brake linings of such vehicles; the use of compressed air to clean the brake drums of such vehicles, and presence of large amounts of visible dust, GODOFREDO PIQUE, was exposed to respirable asbestos fibers by the performance of brake adjustment and replacement work on KENWORTH and PETERBILT vehicles. (Exhibit E, 7-10.) ‘ Ti - LEGAL ARGUMENT A. THE SCOPE OF PACCAR INC.’S MOTION IS LIMITED TO THE ISSUES PRESENTED IN ITS SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS 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 issués 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.” (Juge, * 12 Cal.App.4th at 67.) K Mnjured0950S\gid.opp-PACCARL 4 PLAINTIFE’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT PACCAR INC,’S MOTION FOR SUMMARY JUDGMENT OR, §N THE ALTERNATIVE, SUMMARY ADJUDICATIONeo we IN DH PB WN = VN NYY NY NN DY Be Se Be Se eB Se eB Be eB ody nwnwA FF YW N |= SSC wme IN RH BR wD NY SE SS 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 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.” (Code of Civ. Proc. 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.) Due process further requires the Court to exclude any evidence which-was not timely served in accordance with Code of Civ. Proc. § 437c(a). (San Diego Watercrafis, 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.) As to plaintiff’s.claim of Negligence and Strict Liability, defendant PACCAR argues only that plaintiff has not presented evidence that he personally performed any brake, clutch, or engine work on Peterbilt or Kenworth vehicle while employed at Alltrans between 1973 or 1974. ‘No other issues are properly before the Court to decide. Defendant does not dispute that Mr. Pique has an asbestos-related disease. Defendant does not dispute that brake work was performed on Peterbilt or Kenworth vehicles in his presence during his 1973 - 1974 employment at Alltrans, that the brakes contained asbestos, or that defendant PACCAR was responsible for the asbestos-containing brakes on their PETERBILT and KENWORTH trucks. The court is thus confined to determining the sole issue that defendant does raise: As a matter of law, must an individual have performed brake work in order to have been exposed to asbestos as a result of that brake work? K Nj ueed\109505%phd\opp-PACCAR-m 3. cy np pgs PLAINTIFF'S MEMORANDIJM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT PACCAR INC.’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONSo BU we NAN BR YN Oe B. PACCAR, AS THE MOVING PARTY, FAILED TO CARRY ITS THRESHOLD BURDEN OF SHOWING THAT PLAINTIFF CANNOT ESTABLISH ONE OR MORE ELEMENTS OF THEIR CAUSES OF ACTION BY ANY MEANS “The motion for summary judgment is a drastic measure which deprives the losing party of a trial on the merits, (Bunzel v. Am. Academy of Orthopedic Surgeons (1980) 107 Cal.App.3d 165, 169.) Because of the drastic nature of the summary judgment procedure, “doubts as to the merits of the motion should be resolved in favor of the party opposing the motion.” (Hayman v. Block (1986) 176 Cal.App.3d 629, 639.} A motion for summary judgment shall be granted only if “all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code of Civ. Proc. § 437c(c).) 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, 843, the California Supreme Court “clarified the law that courts must apply in ruling on motions for summary judgment.” The 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." (Id. 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. § 437e{o)(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 or may ‘be taken...."" (Id. at 855., quoting C.C.P. § 437c(b), italics in original.) ut KNojured1095051pid.opp-PACCAR-ma wp 6 RS PLAINTIFE’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT PACCAR INC.’S MOTION FOR, SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONom NAA Pe WN — So 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. (1995) 37 Cal.App.4th 1282, 1288, italics in original) does not reflect sammary judgment law as it has ever stood, and is accordingly disapproved." (Id., fn 23.) PACCAR, 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 motion must be denied, and if is unnecessary for the court to consider the plaintiff's opposition, if any.” (Id., emphasis added.) In ruling on the motion, the court must “consider all of the evidence” and “all” of the “inferences” reasonably drawn therefrom, and must view such evidence in the light most favorable to the opposing party. (Aguilar v. Atlantic Ritchield Company, supra 25 Cal.4th 826, 843.) Here, defendant cannot successfully argue that plaintiff is unable to present evidence establishing that PACCAR’s products caused or contributed to his exposure to asbestos, and thereby to his injury. In asserting this peint, defendant states simply that “Plaintiff's discovery responses and deposition testimony offer nothing more than general statements that he may have been present while [sic] worked on Peterbilts and/or Kenworths at Alltrans between 1973 and 1974.” Defendant goes on to assert that plaintiff “never personally performed any work to any brake, clutch or engine components,” and “never assisted with” any such work. Moreover, defendant denies the existence of any testimony from plaintiff regarding exposure during his employment at F J Burns Draying. K Mojuredt09805 pid\opp- PACCAR-ms 7 ‘KiMinlurod\40050.Syplopp- FACCAR a we PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION: v DEFENDANT PACCAR INC.’S MOTION TOR SUMMARY IUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONFr oO MW ADH &® WN Ce YD A BR wD - NN YY YH RN eo IQ AA FF ON wm S Defendant’s characterization grossly misrepresents the facts in evidence, minimizing or ignoring crucial testimony. Plaintiff has testified extensively that he worked in close proximity to the mechanics who rernoved and replaced brake assemblies in the Kenworth and Peterbilt trucks at Alltrans. In response to PACCAR’s “all facts” interrogatory, plaintiff disclosed that, as part of his employment for Alltrans Express, he refueled and changed tires on company vehicles which included those supplied, manufactured and distributed by PACCAR, INC. Plaintiff further disclosed that he worked in close proximity to the mechanics who removed and replaced brake assemblies in the Kenworth and Peterbilt trucks; and that he saw these brake replacements performed frequently in the maintenance shop where plaintiff worked. Plaintiff further disclosed that brake dust created and built up by the use.and operation of defendant’s KENWORTH and PETERBILT trucks was released by this work, and inhaled by plaintiff. At no point has plaintiff testified that he “may” have been present while others performed brake work on defendant’s vehicles; his consistent testimony has been that he was present for such work. : - In addition, plaintiff testified that he worked in close proximity to others performing brake work on defendant’s trucks during his employment at F J Burns Draying from June to September of 1973, (Exhibit A, 604:15 - 607:9; Exhibit B, §10.) Defendant erroneously denies that such testimony exists. Defendant, perhaps appreciating that it has otherwise failed to carry its burden, attempts to negate plaintiff's otherwise-sufficient evidence of exposure to asbestos from PACCAR products through a declaration comprised of inadmissible hearsay. The declaration purports to provide a factual account from a Mr. Leon Simpson, but does so only through the second- or third-hand recitation of Mr. Simpson’s purported statements by the actual declarant. Even if an admissible declaration from Mr. Simpson himself had been produced by defendant, it appears such a declaration would say nothing more than that Mr. Simpson does not recall KENWORTH and PETERBILT vehicles being present at Alltrans. Plaintiff has testified to the contrary. This is what is commonly known as a disputed issue of material fact. t Hi/ KAlnjuredh108$0S\pldiopp-FACCAR-me] pd 8 LBS PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT PACCAR INC'S MOTION FOR. SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONOo Oe QW A Ww FB WN RNY NRN NNR De eB ee Be ee mm em eo ~ aD UW FW NY KF SD BD eB DQ HH &— WY BH —& Defendant’s fundamental premise, that plaintiff cannot demonstrate exposure via the removal and replacement of brake assemblies on defendant’s vehicles unless he personally performed such work, is flawed. Defendant’s effort to negate the presence of PACCAR- manufactured vehicles at Mr. Pique’s workplace is inadmissible, and, even if admissible, would fail, Defendant has failed to meet its burden, and is not entitled to summary judgment as a matter of law. , Cc. PLAINTIFF’S EVIDENCE DEMONSTRATES THAT TRIABLE ISSUES OF SERIAL AS RST BEARING POU PAPOSURE To If the Court should find that defendant has somehow shifted its burden to plaintiff, 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, 1076-77.) “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.) “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.” Goslin v. Marin Municipal Water District (1967) 67 Cal.2d 132, 147) “Tn 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 motion must be accepted as true. (Herber v. Yaeger (1967) 251 Cal. App.2d 258, 262, emphasis added.) Mt Aljucees 09S 0idhopp PACCAR aps 9 ane '§ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT PACCAR INC.’S MOTION TOR IMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONCc wo NDA HW BF WN 10 The Court cannot conclude as a matter of law, based upon the evidence which plaintiff submits in this matter, that triable issues of material fact do not exist. As presented in plaintiffs opposition, triable issues of material fact as to Mr. PIQUE’s exposure to asbestos for which PACCAR is liable as evidenced in the following documents: (1) Plaintiff GODOFREDO PIQUE’s October 26, 2009 declaration testimony that brake shoes and brake linings were removed from and installed on KENWORTH and PETERBILT vehicles in his presence during his employment at Alltrans, and that such work created visible dust; and (2) The declaration of Charles Ay, dated October 28, 2009, regarding the likelihood that such products would have contained asbestos, and that the processes observed by Mr. PIQUE would have exposed him to respirable asbestos fibers. Plaintiff has demonstrated, by way of declaration and deposition testimony, that plaintiff worked in close proximity to mechanics who were performing original brake removals and replacements on defendant’s PETERBILT and KENWORTH vehicles while he worked for Alltrans Express in the 1970s. Defendant PACCAR does not dispute that, during the relevant time frames, the brake assemblies on its Peterbilt tracks contained asbestos. (Defendant’s Moving Papers, including Defendant's Separate Statement.) Mr. PIQUE has testified that he frequently observed mechanics employed by Alltrans working with brakes on KENWORTH and PETERBILT vehicles in use at Alltrans, and that he generally observed this work from a distance of roughly three feet. (Exhibit A, 581:10-16, 582:19-21, 586:9-14; Exhibit C, 117:20 - 118:6; Exhibit B, 96, 7.) Mr. PIQUE has further testified that Alitrans mechanics used compressed air to clean the brake drums of the vehicles, and that this process created large amounts of visible dust, which he breathed in. (Exhibit B, 99.) Moreover, the removal and disassembly of asbestos-containing friction assemblies, and specifically brake friction parts, causes respirable fibers to be released. In addition, these fibers are constantly being accumulated and contained within the confines of inspection covers and the crevices of friction assemblies themselves, thereby also exposing persons performing adjustments and/or checks of these assemblies to the released fibers. (Exhibit E, 6.) Defendant Klniurehto9s0sipihopp-PACCAR. mind 10 : —LRS PLAINTIFF’°S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT PACCAR INC,'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONoO Oe UW DH FF YN Ny N YY RN NR YOR SF = Be Be em eB Be Be Be cn Aw BF BY HF So we ADH BBN HEH DS has admitted that, between 1930 and 1985, brake linings used on PACCAR’s KENWORTH and PETERBILT vehicles contained chrysotile asbestos, (Exhibit D, 39:6-20.) Given Mr. PIQUE’s observation of and proximity to the removal and replacement of brakes on KENWORTH and PETERBILT vehicles; the presence of chrysotile asbestos in the brake linings of such vehicles; the use of compressed air to clean the brake drums of such vehicles, and presence of large amounts of visible dust, it is more likely than not that Mr. PIQUE, was exposed to respirable asbestos fibers by the performance of brake adjustment and replacement work on KENWORTH and PETERBILT vehicles. (Exhibit E, 7-10.) _ Asa result, the Court cannot conclude as a matter of law, based upon the evidence which plaintiff submits in this matter, that triable issues of material fact do not exist. CONCLUSION For the reasons stated herein, plaintiff respectfully requests that this Court deny defendant's Motion for Summary Judgment, as defendant failed to carry its burden under C.C.P. § 4370(c) and § 437c(p)(2) of proving that plaintiff does not have, and cannot prove, his prima facie case against it. Defendant has not met its burden of proving that plaintiff's discovery responses show that they lack evidence in support plaintiffs claims against defendant or that plaintiff cannot reasonably obtain that evidence. Triable issues of material fact exist concerning Mr. PIQUE’s asbestos exposure from PACCAR products. Dated: 49 HU /O7 BRAYTO! ance R. Attorneys for Plaintiff K Mnjured\10950Sipidhopp- PACCAR ras. wepd i PLAINTIFFS MEMORANDUM OF PORNTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT PACCAR INC.’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION