Motion-Secondary: RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al

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                                BRAYTON® PURCELL LLP

SATLAW

222 RUSH LANDING ROAD

ALTO!

POROX 6189
NOVATO, CALIFORNIA 94948-6169

($15) 898-1555

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

RON G. ARCHER, ESQ., S.B. #189429 _ ELECTRONICALLY

BRAYTON“*PURCELL LLP FILED
Attomeys at Law
222 Rush Landing Road Superior Court of California,
Po. Box 61 © +n 94948-6169 . . County of San Francisco
ovato, California = .
d8- : SEP 19 2008
(415) 898-1555 GORDON PARK-LI, Clerk
Attorneys for Plaintiffs BY: JUANITA Sepa Cle ak
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
RODRICK BRECKLER and } ASBESTOS
JOANN BRECKLER, ; No. 274566
Plaintiffs, PLAINTIFFS' MEMORANDUM OF
. : POINTS AND AUTHORITIES IN
vs. ) OPPOSITION TO DEFENDANT UNITED
) TECHNOLOGIES CORPORATION’S
ASBESTOS DEFENDANTS (B%*P) )

MOTION FOR SUMMARY JUDGMENT

Date: October 3, 2008

Time: 9:30 a.m.

Dept: 302, Hon. Patrick J. Mahoney

Trial Date: None Set

Action Filed: March 12, 2008

L
INTRODUCTION
Defendant UNITED TECHNOLOGIES CORPORATION (“UNITED

TECHNOLOGIES”), has not taken plaintiff RODRICK BRECKLER’s deposition yet in this
case. Discovery is continuing and ongoing. Plaintiff is in the process of preparing a person(s)
most qualified and custodian(s) of records notice regarding UNITED TECHNOLOGIES. This
motion is premature and should be denied outright or at least continued under CCP §437c(h).
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STATEMENT OF FACTS

Plaintiff RODRICK BRECKLER’s father, Joe Breckler worked in industrial plants as a
maintenance mechanic during his career. (Declaration of Rodrick Breckler, attached to the
declaration of Ron G. Archer as Exhibit A, at 92.) From 1961 to 1978, Joe Breckler worked at
the UNITED TECHNOLOGIES CORPORATION plant in Santa Clara, California. (id) His
work at UNITED TECHNOLOGIES involved work on boilers, heated piping systems and
thermal insulation maintenance. (Id.) RODRICK BRECKLER's father wore his dirty and dusty
work clothes home from work at night and into the family house. (Id.) Joe Breckler’s work
clothes were often covered with dust, including his shoes, pants and shirt. (Id.) The dust was
also on his body, his face, hair, hands and arms. ({Id.)

Joe Breckler and RODRICK BRECKLER had a close relationship and during the time
period from 1961-1968, RODRICK BRECKLER had physical contact with his father while he
was wearing his dirty dusty work clothes. (Exhibit A, at 43.) RODRICK BRECKLER played
with his father while he wore his work clothes after work. (Id.) He also gardened with him.
(id.) He hugged him in his dirty dusty work clothes. (id.) He sat in the same car with him while
he wore his working clothes after work. (Jd.) RODRICK BRECKLER lived in the same home
with his father and used the same furniture. (Id.) ,

Retired Industrial Hygienist, Kenneth Cohen reviewed the declaration of RODRICK.
BRECKLER, in which he describes his father’s work clothing after work, his interaction with his|
father as he was growing up, and his father’s work with boilers, heated piping systems and
thermal insulation as a maintenance mechanic at the UNITED TECHNOLOGIES
CORPORATION plant in Santa Clara. (Declaration of Kenneth Cohen, attached to Archer's
Decl. as Exhibit B, at $11.) :

Based upon Mr. Cohen’s background, knowledge, training and experience, and his revie

of the documents, medical and scientific literature identified herein above, Mr. Cohen can state

with scientific certainty, appropriate to the field of industrial hygiene, that given the time period,

the work Joe Breckler did, the description of his dusty clothing, and the interaction between Joe

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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT UNITED TECHNOLOGIES
CORPORATION'S MOTION FGR SUMMARY JUDGMENTms

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and his son RODRICK BRECKLER, that Joe Breckler worked with and around asbestos-
containing insulation materials. (Exhibit B, at 12.) Joe Breckler was exposed to hazardous
levels of asbestos from thermal insulation he worked with and around at the UNITED
TECHNOLOGIES CORPORATION plant in Santa Clara, California from 1961 through 1968.
dd.) Mr. Cohen can state with scientific certainty, appropriate to the field of industrial hygiene,
that given the time period and plant location, Mr. Joe Breckler was more likely than not exposed
to hazardous levels of asbestos from thermal insulation he and others worked with during his
employment at UNITED TECHNOLOGIES CORPORATION in Santa Clara, California from
1961 through 1968. (Id.) :

The asbestos fibers Mr. Joe Breckler was exposed to at the UNTIED TECHNOLOGIES
CORPORATION contaminated all aspects of Mr. Breckler’s work clothes and attire he wore
while performing his job duties. (Exhibit B, at 413.)

Mr. Cohen has reviewed the declaration of RODRICK BRECKLER wherein he states
that his father wore his asbestos-contaminated work clothes back home and into the family home,
(Exhibit B, at $14.) He also describes physical interaction with his father as a youngster from
1961 through 1968, (Id) :

Based upon his background, knowledge, training and experience, and his review of the
documents, medical and scientific literature identified herein above, Mr. Cohen can state with
scientific certainty, appropriate to the field of industrial hygiene, that plaintiff RODRICK.
BRECKLER was exposed to hazardous levels of airborne asbestos fibers and dust brought into
the Breckler home on Joe Breckler’s work clothes and attire and remaining in the automobile
riding home in it with dirty dusty work clothes on. (Exhibit B, at 415.)

The deposition of RODRICK BRECKLER has not taken place. (Declaration of Ron G,
Archer, at §2.) Defendant has not taken plaintiff's deposition. (1d.) This case was only filed this
last March. (id.) Plaintiffs intend on noticing the deposition of the person(s) most
knowledgeable and custodian(s) of records of UNITED TECHNOLOGIES in order to gain
information regarding possible co-worker witnesses of Joe Breckler, as well as information

regarding asbestos-containing equipment that was located at the UNITED TECHNOLOGIES

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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT UNITED TECHNOLOGIES
CORPC OREORA TION’ ‘S$ MOTION FOR SUMMARY JUDGMENT‘ cannot reasonably obtain needed evidence.” (Aguilar at 855.)

facility in Santa Clara facility in the 1950s and 1960s. (id,) Such discovery is reasonable and
may lead to relevant information against UNITED TECHNOLOGIES.
. m
LEGAL ARGUMENT
A. TO PREVAIL ON A MOTION FOR SUMMARY JUDGMENT, THE MOVING

PARTY MUST SATISFY BOTH A BURDEN AND A PLEADING
REQUIREMENT

1. The Burden of Production is on the Moving Party.

For a motion for summary judgment to be granted in California, the moving party (here,
UNITED TECHNOLOGIES) must 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. C.C.P. 437c(c). The initial
burden lies with the moving party, and only after the burden has been shifted is the responding
party required to make a showing that there is a triable issue of material fact. “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. (Aguilar v. Atlantic Richfield
Company (2001) 25 Cal 4th 826, 849, quoting C.C.P.§ 437c(o}(2).) “The party moving for

summary judgment bears an initial burden of production to make a prima facie showing of the
nonexistence of any triable issue of material fact; if he carries his burden of production, he cause
a shift, and the opposing party is then subjected to a burden of production of his own to make a
prima facie Showing of the existence of a triable issue of material fact." (Id. at 850.) In other
words, if defendant cannot establish that plaintiff cannot prove her case, the motion must be
denied before plaintiff's evidence of material facts ever-needs to be considered.

A defendant may seek summary judgment either by showing that one or more of the
elements of the cause of action cannot be separately established or by establishing an affirmative
defense to that cause of action. C.C.P. 437e(0\(1)-(2). To defeat the cause of action, the
defendant must show that the plaintiff “does not possess needed evidence” and that “the plaintifi

The defendant cannot simply assert lack of evidence: "Language in certain decisions

purportedly allowing a defendant moving for summary judgment simply to ‘point[]’ out, through

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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT UNITED TECHNOLOGIES
CORPORATION'S MOTION FOR SUMMARY JUDGMENToD Om NY DH HW Be WN

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 summary judgment law as it has ever stood, and is accordingly disapproved." (Aguilar
at fn 23.) Rather, defendant must prove that one or more elements of plaintiffs causes of action
“cannot be established” before the burden shifts to the opposing party. (C.C.P.§ 437 (0){2);
Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 71-72; Villa v. McFerren
(1995) 35 Cal.App.4th 733.)

As will be shown more fully below, UNITED TECHNOLOGIES is unable to meet its

own burden of production. Its motion does not negate any essential elements of plaintiff's claim

or establish that plaintiff does not have or cannot obtain evidence. A motion for summary :

Judgment is not a mechanism for rewarding limited discovery, it is a mechanisrn allowing the

early disposition of cases where there is no reason to believe that a party will be able to prove its

case. (Weber v. John Crane, Inc. (2006). 143 Cal.App.4th 1433, 1442.) This is not the case here.
2. The Scope of Defendant’s Argument is Limited to Its Separate Statement,

Summary judgment law limits a defendant’s methods of meeting its burden through the
mechanism of the Separate Statement, which must set forth “plainly and concisely al] material
facts which the moving party contends are undisputed.” (C.C.P. 437(c)(b\(1).) “[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. y. 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 v. County of Sacramento (1993) 12 Cal.App.4th 59, 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 fo the cause of

action, claim, issue of duty, or affirmative defense.” (Cal. Rules of Court, mle 342(d), emphasis

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PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT UNITED TECIINOLOGIES:
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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.” (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. (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 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.)

Defendant’s motion for Summary Judgment is limited to those issues and evidence in its
Separate Statement. The defendant cannot produce new evidence in its reply brief or at the
hearing, The issue before the Court is whether or not plaintiff can establish that the activities of
Joe Breckler at UNITED TECHNOLOGIES caused the take-home asbestos exposure of
RODRICK BRECKLER.

B. DEFENDANT HAS FAILED TO CARRY ITS THRESHOLD BURDEN OF

PRODUCING COMPETENT EVIDENCE ESTABLISHING THAT PLAINTIFF

DOES NOT HAVE, AND CANNOT REASONABLY EXPECT TO OBTAIN, A
PRIMA FACIE CASE.

UNITED TECHNOLOGIES must either present evidence that conclusively negates a
necessary element of plaintiff's cause of action or present evidence showing plaintiff cannot
establish a cause of action. (Aguilar, supra, at 855.) The scope of defendant’s motion and the
evidence available to it is limited to the issues and facts presented in its Separate Statement.
Here, defendant raises no arguments in its Separate Statement that present an affirmative defense]

There are no affidavits, declarations, or other evidence offered to negate any element of
plaintiff's case. None of defendant’s twenty-nine exhibits present any affirmative defense.

Rather, all but one (the complaint) are either interrogatory questions or responses. (Defendant’s

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-Moving Papers.) This evidence provides a record of what has transpired in the case thus far but

does nothing to conclusively negate plaintiff's allegations or show that plaintiff cannot produce
other evidence. /

Defendant additionally claims that.even if plaintiff ‘could establish exposure, plaintiff has
no evidence that such exposure was a substantial factor in Mr. BRECKLER’s illness.
(Defendant’s Separate Statement, number 7.) However, defendant offers no “Undisputed
Material Facts” (UMF) or evidence showing either that exposure from defendant’s activities was
not contributory to plaintiff s illness or that plaintiff cannot establish that it was, (Defendant's
Separate Statement, UMF No.1-7.) Consequently defendant’ s assertion remains merely an
assertion arid nrust be either disregarded or decided in plaintiff's favor.

Defendant asserts that plaintiff ‘provides no specific facts in hisresponses to Special
Interrogatories that show he was exposed to asbestos through UNITED TECHNOLOGIES’

activities. Defendant fails to provide any argument, either logical or legal, as to why the facts

that plaintiff did provide are insufficient. (Defendant’s Memorandum of Points and Authorities.)
Defendant complains that plaintiff's responses to its Request for Production of Documents
identify documents such as plaintiff's responses to Standard Case Interrogatories, employment
and medical records. Defendant fails to explain why these documents are an insufficient
response to its own boiler-plate requests such as, “Produce any and all DOCUMENTS that refer
or relate to your contention as set forth in the Complaint that exposure to any product as a result
of any action or omission of UNITED TECHNOLOGIES was a substantial factor in causing
YOUR asbestos-related disease.” :

In Scheiding v. Dinwiddie Construction Co, (1999) 69 Cal. App. 4" 64, the Court found

that neither a deposition nor Standard Interrogatories were comparable to “all facts”

interrogatories, “No California case has concluded that a moving party for summary judgment
can simply argue there is an absence of facts to support the opposing party’s case.” (Scheiding vd
Dinwiddie Construction Co. ( 1999) 69 Cal. App. 4" 64, 81.) A defendant may not rely on its

own failure to propound discovery or seek responses as evidence that responsive information

does not exist. The Court in Scheiding held that a defendant that did not engage in discovery

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could not then use plaintiff's lack of answers to the missing discovery to support summary
judgment: “[W]e can infer nothing at all with respect to questions which were neither asked nor
answered.” (Jd.at 81.) While technically defendant propounded all-facts discovery, defendant
can hardly be said to have conducted thorough discovery when it did not tailor its questions to
the facts of the case but propounded only broad -boiler-plate questions.

The California Court of Appeal in Weber v. John Crane, Inc, 143 Cal. App. 4" at 1433,
sheds further light on what showing a defendant must make in order to meet its initial burden.
The Weber Court stated: “... the cases do not establish that a defendant shifts the burden of
production to the plaintiff by a showing that a plaintiff witness has no personal recall of the
defendant’s product.” (Weber v. John Crane. Inc. (2006) 143 Cal. App. 4", 1433, 1439.) Lack
of identification alone does not shift the burden, and defendant makes no other arguments.
Defendant has not even deposed plaintiff RODRICK BRECKLER.

In short, UNITED TECHNOLOGIES’s motion must fail because it has only asserted that
plaintiff does not have specific facts or identification. UNITED TECHNOLOGIES has not even
come near to showing that plaintiff cannot obtain evidence to prove her claim.

c. TRIABLE ISSUES OF MATERIAL FACT EXIST REGARDING PLAINTIFP’S

EXPOSURE TO ASBESTOS FOR WHICH UNITED TECHNOLOGIES IS
LIABLE

Assuming, arguendo, that defendant has shifted its burden, the Court should still deny
defendant’s motion because triable issues of material fact exist. In looking at the evidence, the
court may not evaluate the merits of the issues. “The function of the tria] court in ruling ona
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 court must consider all the evidence and all of the inferences reasonably
drawn from the evidence “in the light most favorable to the opposing party.” (Aguilar, supra, at
843.)

This liberality extends to the declarations filed by the responding party. “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

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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES BN. OPPOSHTION TO DEFENDANT UNITED TECHNOLOGIES:
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propriety of granting the motion should be resolved in favor of the party opposing the motion.”
(Joslin:v. Marin Municipal Water District (1967) 67 Cal.2d 132, 147.) Additionally, the facts

alleged in the affidavits of the party opposing the motion must be accepted as true. (Herber y.
Yaeger (1967) 251 Cal.App.2d 258, 262.)

In this case, plaintiff has provided evidence that he was exposed to asbestos fibers from.
his father’s clothing and person. (BRECKLER declaration and Cohen declaration.) This
evidence raises a triable issue of material fact. Construing liberally the evidence plaintiff
presents, as the Court must, the Court cannot conclude as a matter of law that triable issues of
material fact do not exist. :

A motion for summary judgment is a drastic measure which deprives the losing party of a
trial on the merits, and should therefore be tised only with caution. (Bunzel v. Am. Academy of
Orthopedic Surgeons (1980) 107 Cal.App.3d 165, 169.) Because of the drastic nature of the
summary judgment procedure, any doubts as to whether summary judgment is proper must be
resolved against the moving party. ( Hayman v. Block (1986) 176 Cal.App.3d 629, 639.) The
court cannot grant the motion based on “inferences reasonably deducible from the evidence, if
contradicted by other inferences or evidence, which raise a triable issue as to any material fact.”
CCP437ce(c). Because plaintiff has shown reasonable inferences and evidence which raise a
triable issue of material fact, the court must not grant the motion for summary judgment and der
RODERICK BRECKLER his right to trial on the merits.

D. FACTS ESSENTIAL TO JUSTIFY PLAINTIFFS’ OPPOSITION TO FOSTER’S,

MOTION FOR SUMMARY JUDGMENT EXIST BUT CANNOT NOW BE
. PRESENTED TO THE COURT.

California Code of Civil Procedure §437¢(h) provides for denial or continuance of

Motions for Summary Judgment:

If it appears from the affidavits submitted in opposition to a motion for summary
judgment or summary adjudication or both that facts essential to justify o position
May exist but cannot, for reasons stated, then be presented, the court en

the motion, or order 2 continuance to permit affidavits to be obtained or discovery

to be had or may make any other order as may be just.
(C.C.P. §437c(h), emphasis added.)
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PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT UNITED TECHNOLOGIES
CORPORATION’S MOTION FOR SUMMARY JUDGMENTOo co SD A A Rk BY NH

. site. Such documents and testimony are likely to prove relevant to plaintiff's take-home

In Bahl v, Bank of America (2001) 89 Cal.App.4th 389, only after plaintiff filed her
opposition to defendant’s Motion for Summary Judgment did the defendant produce hundreds of
pages of additional, relevant documents. Plaintiff filed a supplemental opposition, requesting a
continuance of the hearing under CCP. §437c(h) because transcripts essential to justify
opposition had not yet been received from the court reporter. The Court of Appeals held that the
language of C.C.P, §437c(h) “leaves little room for doubt that such continuances are to be
liberally granted” and that continuances are “virtually mandated”. Bah? at 395. The Court further.
noted that the case law allows an opposing party to “compel” a continuance if a declaration
meeting the requirements of C.C.P. §437c(h) is submitted in support of that party’s request. Bahl
at 395, 396, citing Mary Morgan, Inc. v. Melzark (1996) 49 Cal.App.4th 765, 770-771.

Plaintiffs seek to depose defendant and to review documents regarding its Santa Clara

exposure from his father when he worked at defendant’s facility. This information is crucial to
justify plaintiffs’ opposition to defendant's Motion for Summary Judgment, and because
plaintiffs’ industrial hygiene and medical experts must have reliable information about
defendant’s facility in order to testify meaningfully about BRECKLER'’s level of exposure to
respirable asbestos from his father’s take-home of asbestos on his work clothes, and the degree to
which exposure to asbestos from defendant’s contaminated facility was a substantial factor that
increased Mr. BRECKLER’s risk of contracting an asbestos disease. Plaintiffs expect that
defendant’s documents in particular will contain extensive and highly-relevant information,
including that pertaiming to the identify of co-workers; asbestos-containing equipment at the
facility in question and other information, such as any fiber-release studies or information in
UNITED TECHNOLOGIES’s possession; and what defendant knew about the hazards of
asbestos.

Plaintifts anticipate that defendant will argue that plaintiffs cannot prove their case even
after document production and the completion of defendant’s deposition. While plaintiffs are
baffled that defendant would fight so hard against discovery it is confident will reveal nothing,
this misstates the legal standard. All that is required under C.C.P. §437c(h) and the applicable

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PLAINTIFFS! MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT UNITED TECHNOLOGIES
CORPORATION'S MOTION FOR SUMMARY JUDGMENTcase law is that the opposing party articulate facts essential to justify opposition may exist but
cannot now be presented to the Court, and that continuing the Motion for Summary Judgment
will enable plaintiffs to obtain these fact; if so, the Court shall continue or deny the Motion.
CONCLUSION

Defendant UNITED TECHNOLOGIES’s assertions fail to conclusively negate any of
plaintiff’s causes of action, fail to show that plaintiff cannot reasonably obtain evidence
supporting her claims, and fail to demonstrate that there are no material facts whatsoever. ©
Therefore, plaintiff RODRICK’ BRECKLER respectfully requests this Court to deny defendant’s
Motion for Summary Judgment.. If the Court is inclined to grant the motion, plaintiffs

respectfully request.a continuance pursuant to CCP §437eth).
Dated: / We o en LLLP

Bre

[Since this matter is set in a department which has a tentative ruling system, you
MUST reach a “live person” in our office when calling about appearing at a hearing after al
tentative ruling; if you get into voice-mail, press 0 and have the operator page an attorney

to take your call]

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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT UNITED TECHNOLOGIES.

CORPORATION’S MOTION FOR SUMMARY JUDGMENT