arrow left
arrow right
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview 
						
                                
Preview

                                TUCKER ELLIS & WEST LLP
CURTISS L. ISLER (SBN 146903)

$15 South Flower Street ELECTRONICALLY

Forty Second Floor

Los Angeles, CA 90071-2223 FILED
Telephone: 213.430.3400 Superior Court of California,
Facsimile: 213.430.3409 County of San Francisco
Email Address: Clsler@tuckerellis.com SEP 26 2008
TUCKER ELLIS & WEST LLP GORDON PARCEL Clerk
LANCE D, WILSON (SBN 183852) Deputy Clerk

135 Main Street, Suite 700

San Francisco, CA 94105

Telephone: (415) 617-2400

Facsimile: (415) 617-2409

Email Address: 1dwilson@tuckerellis.com

Attorneys for Defendant
UNITED TECHNOLOGIES CORPORATION

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO

RODRICK BRECKLER AND JOANN
BRECKLER,

Case No. CGC-08-274566

UNITED TECHNOLOGIES
CORPORATION’S REPLY TO
PLAINTIFF’S OPPOSITION TO UNITED
TECHNOLOGIES CORPORATION
MOTION FOR SUMMARY
JUDGMENT/ADJUDICATION

Plaintiffs,
v.

)
)
)
)
)
)
}
ALLIS-CHALMERS CORPORATION, et al., )

) Date: October 3, 2008
Defendants. ) Time: 9:30 a.m.

} Dept.: 302
)
)
)
)
)
)
)

L PROCEDURAL FINDINGS ON THE MOTION
The procedure to be followed in this matter is well defined. The Court must 1) decide if
UTC has shifted the burden, 2) determine if Plaintiff has responded with facts supported by

ADMISSIBLE evidence; and 3) rule on any objections to evidence. UTC requests that this

MEMORANDUM OF POINTS AND AUTHORITIES
SFOiManage\010390.000255\161074.1Court provide specific rulings on each of the issues set forth above and discussed below.
I. UTC’S MOTION AND EVIDENCE HAS SHIFTED THE BURDEN

UTC’s motion is supported by Plaintiff's verified responses to specially prepared
requests for admission and interrogatories wherein Plaintiff has conceded that he is unable to
identify or produce evidence to support his allegations that his father was exposed to asbestos
released from UTC-controlled premises and that these fibers were then carried into the presence
of Plaintiff, causing him injury. UTC’s request were thorough and simple requiring Plaintiff to
set forth all facts and evidence. Plaintiff’s responses do nothing more than regurgitate his
allegations and entirely fail to identify any evidence to support any of the allegations.

That Plaintiff has missed the point of Aguilar, Scheiding and Weber is obvious in that
Plaintiff continually argues that this motion is somehow premature because Plaintiff has not yet
been deposed. Plaintiff has submitted verified responses to UTC’s specific discovery requests
that establish that he cannot set forth any supportable facts or identify any witnesses or
documents to support his claims as to UTC in this matter. He clearly has nothing of substance to
say as to UTC in this matter nor can he offer up any leads, witnesses or documents that are
relevant. As such, whether or not he has been deposed makes no difference to this motion.

Plaintiff's first argument is that factually devoid discovery responses are not sufficient to
shift the burden because such discovery responses do not “show that plaintiff cannot produce
other evidence.” (Plaintiffs opposition at 7:2-3) The Supreme Court has ruled otherwise and
has expressly held that a plaintiffs failure to identify evidence to support his claims in response
to discovery requests requiring such is the basis for shifting and, actually, will shift the burden on
a defendant’s motion for summary judgment. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4"
826, 855,

UTC’s discovery requests were straightforward, simple and specific. For example, UTC
asked Plaintiff to set forth the asbestos-containing products at issue, the activities that released
the fibers, and the names of any persons who observed his father present in a UTC facility and
observed asbestos-containing products disturbed in his presence. (Interrogatory Nos. 3, 4, 5, 12.

Attached as Exhibit C to the Declaration of Lance Wilson and referenced and set forth as

2.
MEMORANDUM OF POINTS AND AUTHORITIES
SFOiManage\010390.000255\161074.1evidence in support of UTC’s MSJ in UMF No. 4) Plaintiff was unable to provide any
information responsive to these interrogatories; however, more compelling is Plaintiff's
admission that he lacks the evidence to support his claims as to UTC (Plaintiff's responses to
Requests for Admission Nos. 1-3. Attached as Exhibit B to the Wilson Dec and submitted in
support of UTC’s MSJ and UMF No. 3) These admissions, in and of themselves, shift the
burden on this motion.

Plaintiff has had more than six months to muster evidence to support his claims as to
UTC and was statutorily obligated to conduct a good faith and reasonable investigation in
responding to the discovery at issue and was not able to identify any evidence to support his
claims. Plaintiffs hope that he will someday come up with such evidence has no place in this
motion or in this Court. In fact, per CCP section 128.7, UTC should have never been named in
the first place as Plaintiff has absolutely no basis for his allegations that UTC is liable for any
alleged injury at issue in this case.

Plaintiff next concedes that UTC did propound “all-facts discovery” (Plaintiff's
opposition at 8:3) but then attempts to argue that UTC’s discovery requests were “boiler-plate”
and not tailored to the facts of this case and therefore, somehow, someway, should not count.
Staying true to form, Plaintiff fails to provide any specific facts or argument for his assertion that
the requests were “boiler-plate” or that they must be disregarded. Instead, Plaintiff quotes a
document request, without a citation, that was not submitted to this Court by UTC and has
nothing to do with this motion (Plaintiff's opposition at 7:18-21). In fact, as set forth above and
as set forth in UTC’s separate statement, the discovery requests were quite specific.

Contrary to the document request quoted by Plaintiff in his opposition, UTC specifically
requested that Plaintiff identify “all DOCUMENTS which contain information evidencing or
showing that RODRICK BRECKLER inhaled asbestos fibers released from products or premises
for which (Plaintiff) claims UTC is liable.” (Interrogatory No. 11, attached as Exhibit C to the
Declaration of Lance Wilson and submitted in support of UTC’s MSJ). Plaintiffs response to
this Interrogatory is 20 lines of boiler-plate objections, 3-4 lines of a boiler plate laundry list

(including an entry for medical billing records) and a statement that Plaintiff can identify nothing

3.
MEMORANDUM OF POINTS AND AUTHORITIES
SFOiManage\010390.000255\161074.1more after “a reasonable and good faith inquiry.” (Plaintiffs response to Interrogatory No. 11,
attached as Exhibit C to the Declaration of Lance Wilson and submitted in support or UTC’s
MSJ).

Plaintiff correctly argues that the point of Scheiding and Weber is that requests to
specially prepared discovery are usually the best evidence for a summary judgment motion based
on Plaintiff's inability to provide facts/evidence to support causation. These cases completely
support UTC’s motion and Plaintiff’s attempted application of the Scheiding and Weber holdings
to this case is incomprehensible.

UTC served specific all-facts discovery requests. Plaintiffs responses do not contain any
facts that his father was exposed to asbestos at a UTC facility and, more importantly, does not set
forth any witnesses or documents to support a claim that his father brought home asbestos fibers
released from a UTC facility. The burden therefore shifts to Plaintiff to present to this Court
ADMISSIBLE evidence of this glaring gap in causation as to UTC.

Tif, PLAINTIFF DOES NOT PRESENT ADMISSIBLE EVIDENCE SUFFICIENT TO

ESTABLISH A TRIABLE ISSUE OF FACT REMAINS

A. Plaintiff's Declaration lack’s foundation

Plaintiff submits his own declaration which simply concludes that his father worked at a
UTC facility in Santa Clara and that his work “involved work on boilers, heated piping systems
and thermal insulation maintenance.” (Plaintiff's Declaration at 1:23-2:3) Plaintiff provides no
foundation for these claims. UTC hereby objects to this statement as lacking in foundation and
speculative. UTC objects to the entirety of Plaintiffs Declaration on this same basis, but in
particular, paragraph no. 2 as set forth from 1:23-2:3 and moves this Court to strike paragraph
no, 2.

It is important to note that these newly set forth allegations regarding the type of
equipment that Plaintiff claims his father’s work involved are not to be found in Plaintiff's
responses to UTC’s special interrogatories (See response to special interrogatory no. 1 attached
to the Wilson Dec. as Exhibit C.) Furthermore, even taken at face value, Plaintiff's new

statements still do not set forth any activities performed that released any asbestos fibers. Nor

4.
MEMORANDUM OF POINTS AND AUTHORITIES
SFOiManage\010390.000255\161074.1does Plaintiffs new statement identify any witnesses or documents in support of these new
“facts.” As such Plaintiff's unsupported claims cannot be considered by this Court as a triable
issue of fact.

B, The Declaration of Kenneth Cohen lacks foundation

Kenneth Cohen reviewed the foundationless declaration of Plaintiff and states with
“scientific certainty” that Plaintiff was exposed to hazardous levels of asbestos released from the
UTC facility and brought home by Plaintiff's father. Not only are Cohen’s statements based on
the unsupported claims of Plaintiff but they contain nothing upon which his conclusions can be
based. There is no evidence that Cohen has been to the facility, knows anything about any of the
equipment that may have been inside that facility, or even what the facility produced. He has no
knowledge of the activities of Plaintiffs father or anyone else within that facility as it relates to
any equipment or products that may have been contained within it, He cites a series of articles,
none of which are attached or even applied to any of his statements, and he goes on to make
conclusions to a “scientific certainty” without the use of any actual science at all.

UTC objects to the Declaration of Kenneth Cohen as lacking in foundation and moves
this Court to strike it in its entirety; or in the alternative, UTC objects and moves to strike
paragraph nos. 11-15 (4:14-5:13) as lacking in foundation.

As the Declarations of Plaintiff and Kenneth Cohen are without foundation, Plaintiff has
not produced evidence sufficient to establish a triable issue of fact in response to UTC’s motion
for summary judgment,
IV. PLAINTIFF’S AFFIDAVIT DOES NOT WARRANT A CONTINUANCE

Plaintiff has never had a reasonable basis to pursue UTC in this matter. Despite the
requirements of CCP section 128.7 (allegations must have evidentiary support or likely to have

such support after discovery), Plaintiff named and served UTC solely on the basis that his father

worked at a UTC facility with no facts or information that his father was exposed to any asbestos
as a result of his employment at UTC. Plaintiff has had at least six months to come up with
something to justify naming UTC in this matter and has not done so. Now, on the eve of the

hearing on this motion Plaintiff wants a continuance to do further discovery. This Court should

3.
MEMORANDUM OF POINTS AND AUTHORITIES
SFOiManage\010390.000255\161074.1not allow any further delay in allowing UTC to be extricated from this action.
UTC wastes hundreds of thousands of dollars appearing and conducting discovery in
cases like these where it should have never been named and it is ultimately dismissed. Here,
UTC has acted appropriately to conduct discovery, show this Court that there are no facts to
support the claims against it, and seek a dismissal. UTC is making every attempt to stem
litigation costs in these types of cases and obtain a dismissal before it is forced to conduct and
participate in extensive discovery. If UTC is forced to produce a corporate witness (which
tequires travel to and from the Bay Area and a day of testimony which takes a highly valued
employee out of action for three days) and perform a document search (yet more waste) in every
frivolous case where it is named, the litigation expense will become unduly oppressive.
Plaintiff seeks further delay on a hope that UTC may have some information showing
that Plaintiffs father handled and disturbed asbestos-containing materials at a UTC facility.
Plaintiff seeks to hold UTC in this case yet longer and seck a wasteful deposition of UTC on
nothing more than a hope. Plaintiff has been unable to produce to this Court a shred of actual
evidence upon which reasonable belief that his father was exposed to asbestos at a UTC facility
can be based. Most importantly, Plaintiff has not shown this Court that he has lifted a finger to
conduct any sort of independent investigation to develop a basis for naming UTC in this case.
Under these circumstances this Court has the discretion to and should deny Plaintiffs motion for
acontinuance. Plaintiff's lack of diligence in conducting discovery and performing an
investigation warrant denial of the motion for a continuance. Bahl y. Bank of America (2001) 89
Cal. App. 389, 398.
Hf this Court does grant Plaintiff's motion for a continuance, UTC requests the following:
\) That this Court rule on the issues as to whether the burden has shifted, whether
Plaintiff has established a triable issue of fact, and rule on UTC’s objections to
Plaintiff's evidence;

2) That the continuance be for no more than 6 weeks;

3) That the continuance be conditioned on an agreement that Plaintiff's counsel

will conduct any deposition by telephone or travel to the location of the

6.
MEMORANDUM OF POINTS AND AUTHORITIES
SFOiManage\010390.000255\161074.1deponent at Plaintiff's expense;

4) That the continuance be conditioned on a limitation of discovery to UTC’s
knowledge regarding documents or witnesses that may establish Joseph
Breckler’s exposure to any asbestos-containing products at the UTC facility in
Santa Clara;

5) That the continuance be conditioned on an agreement that Plaintiff pays all
expenses and attorney’s fees related to any further discovery if UTC’s motion

for summary judgment is subsequently granted; and,

6) That the continuance be conditioned on an agreement that Plaintiffs deposition
will not go forward until this Court has ruled on this motion so as to spare UTC
any further litigation expense while the motion is pending.

Vv. CONCLUSION

Based on the above facts, points and authorities this Court should grant UTC’s motion for
summary judgment on the basis that Plaintiff's discovery responses shift the burden: Plaintiff's
proffered evidence (Declarations of Plaintiff and Kenneth Cohen) is objectionable as it lacks
foundation and, therefore, is not admissible; and Plaintiff has failed to present a triable issue of
fact based on admissible evidence. This Court should deny Plaintiff’s request for a continuance
as Plaintiff has not shown a reasonable basis for this Court to conclude that facts to justify an
extension may exist and because Plaintiff has not conducted any investigation or discovery to
show the Court that such facts may exist. Finally, if this Court grants Plaintiff's motion for a
continuance, the order should set forth the conditions requested by UTC as the facts presented to

this Court warrant such.
DATED: September 24, 2008 TUCKER ELLIS & WEST LLP

|. Wd

Lance Wilson

Attorneys for Defendant
UNITED TECHNOLOGIES
CORPORATION

By:

7.
MEMORANDUM OF POINTS AND AUTHORITIES
SFOiManage\010390.000255\161074.1Roderick Breckler, et al. v. , Allis-Chalmers Corporation, et al.

SFSC Case No. 274566
PROOF OF SERVICE OF ELECTRONIC TRANSMISSION
STATE OF CALIFORNIA — COUNTY OF SAN FRANCISCO

I, the undersigned, declare: that I 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 1 am employed in
the County of San Francisco, State of California. My business address is 135 Main Street, Suite
700, San Francisco, California 94105. My electronic notification address is
anna.pasynkova@tuckerellis.com.

On the date executed below, | electronically served the document(s) via Lexis Nexis File
& Serve described as:

UNITED TECHNOLOGIES CORPORATION’S REPLY TO PLAINTIFF’S
OPPOSITION TO UNITED TECHNOLOGIES CORPORATION MOTION FOR
SUMMARY JUDGMENT/ADJUDICATION
on the recipients designated on the Transaction Receipt located on the LexisNexis File & Serve
website. This service was completed in accordance with the Amended General Order No. 158.

i declare under penalty of perjury pursuant to the laws of the State of California that the

foregoing is true and correct and was executed on September 26, 2008, at San Francisco,

California.

fre (eget

Anna Pasynkova

8.
MEMORANDUM OF POINTS AND AUTHORITIES
SFOiManage\010390.000255\161074.1