Party Discovery: RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al

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                                BRAYTON @PURCELL LLP

ATTORNEYS AT LAW

222 RUSH LANDING ROAD

PO BOX 6169
NOVATO, CALIFORNIA 94948-6169

(415) 898-1555

o we I A UW BF &

ALAN R. BRAYTON, ESQ,, 8.B. #73685 f.
DAVID R. DONADIO, ESQ., S.B. #154436

ERIN A. ORZEL, ESQ., S.B. #252965 ELECTRONICALLY

BRAYTON®PURCELL LLP FILED

Attomeys at Law Superior Court of California,

33 Rush Landing Road County of San Francisco
AO, Box

Novato, California 94948-6169 ' JUL 23 2008

(415) 898-1555 GORDON PARK-LI, Cler
BY: WILLIAM TRUPEK

Attomeys for Plaintiffs / . Deputy Clerk

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

RODRICK BRECKLER and ASBESTOS
JOANN BRECKLER, No. 274566

Plaintiffs, PLAINTIFFS’ RESPONSE TO
DEFENDANT CARRIER
vs. CORPORATION’S SEPARATE
STATEMENT IN SUPPORT OF ITS
ASBESTOS DEFENDANTS (B%P) ) MOTION TO COMPEL FURTHER
= RESPONSES FROM PLAINTIFF TO
REQUESTS FOR ADMISSION

Date: August 5, 2008
Time: 10:30 a.m.
Dept: 610
Trail Date: None set
. Action Filed: March 12, 2008
Plaintiffs hereby submitithe following response to Defendant’s Separate Statement in
Support of Defendant’s Motion to Compel Responses to Request for Admissions, Set One.

REQUEST FOR ADMISSION NO. 11
REQUEST NO. 11 ~ Admit that RODRICK BRECKLER was EXPOSED to
ASBESTOS-CONTAINING PRODUCTS for which CARRIER is not liable.

PLAINTIFFS’ RESPONSE TO REQUEST FOR ADMISSION NO. 11

Plaintiff objects to this Request on the grounds that it is vague, ambiguous, and
overbroad, particularly with regard to the use of terms including, but not limited to,
“EXPOSED,” “ASBESTOS-CONTAINING PRODUCTS” and “liable.” Plaintiff further
objects to this Request to the extent to which it improperly seeks premature disclosure of.
consultant identification, reports, and testimony in violation of the parameters of C.C.P.

§ 2034.010, et seq. Plaintiff further objects on the  frounds that defendant has misused the
Requests for Admission, which is not a discovery device but is primarily designed to set at rest
an otherwise triable issue of fact. International Harvester Co. v. Superior Court (1969) 273

A Ynjeresarees CARRE pd 1

PLAINTIFFS’ RESPONSE TO DEFENDANT CARRIER CORPORATION'S SEPARATE STATEMENT IN SUPPORT OF ITS MOTION
TO COMPEL FURTHER RESPONSES FROM PLAINTIFF TO REQUESTS FOR ADMISSIONcoo TO Rh eR WN

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Cal. App.2d 652;, Cemiogs » Superics Cott (1961) 56 Cal.App.2d 423, 429; Hillman v. Stuls
(1968) 263 Cal.App.2d 848, 884-387. “Although a Request for admissions is technically nota
discovery device Bh rather a means for eliminating undisputed matters from the necessity for
trial, it is nevertheless capable of being abused in the same way as interrogatories and :
depositions, and therefore can form the basis for an abuse of process action.” Twyford v.
Twyford, (App.3.Dist. 1976) 63 Cal.App.3d 916, Plaintiff further objects to this Request on the
grounds that it calls for legal conclusions. Plaintiff further objects to this Request on the
ground that it violates Code of Civil Procedure ; 2017.010 in that defendant improperly seeks
information not relevant to the subject matier of the action. Furthermore, defendant improperly
seeks information that is not likely to lead to discovery of admissible evidence because no
logical inference of liability can be drawn therefrom. Proposition 51, codified as Civil Code
§ 1431.2, states “In any action for personal injury, property damage, or wrongful death, based
on principles of comparative fault, the liability of each defendant for non-economic damages
shall be several only and shall not be joint. Each defendant shall be liable only for the amount
of non-economic damages allocated to that defendant in direct proportion to that defendant's
percentage of fault, a separate judgment shall be rendered against that defendant for that
amount.”

DEFENDANT'S REASON TO COMPEL FURTHER RESPONSE TO REQUEST FOR
ADMISSION NO. 11 :

Plaintiff has provided no responsive information to this request for admission, and has
served only objections, Plaintiffs objections are unfounded. California Code of Civil
Procedure : 2030.010 authorizes the use of admission requests to discern “the truth of specified
matters of fact, opinion relating to fact, or application of law to fact: A request for admission
may relate to a matter that is in controversy between the parties.” CCP § 2017.010 authorizes
discovery that “may relate to the claim or defense of the party seeking discovery or of any other
party to the action.” Here, Carrier is conducting discovery to gather information to support its
defense and Proposition 51 claims for trial. “Information sought through discovery is relevant
to the subject matter if it relates to a claim or defense of the examining party...[and includes]
factual information that supports allegations in the pleadings. . This is true even though a party
has the burden of proof on the issues on which he is seeking discovery.” Dompeling v, Superior
Court (1981) 117 Cal. App.3d 798, 808. a.

This Request for Admission seeks admission or denial of an issue that will be squarely
before a jury at trial. Requesting Plaintiff to admit or deny exposure to asbestos-containing
products for which Carrier is not liable does not require consultation with an expert or
consultant. “...(Tyhe fact that the request is for the admission of a controversial matter, or one
involving complex facts, or calls for an opinion, is of no moment. If the litigant is able to make
the admission, the time for making it is during discovery procedures, and not at the trial.”

i rt for Los Angele: (1963) 215 Cal.App.2d 318, 323.

“Each answer in a response to requests for admission shall be as complete and
straightforward as the-information reasonably available to the responding party permits.” CCP
§ 2033.200(a). Plaintiffs must “(1) Admit so much of the matter involved in the request as is
true, either as expressed in the request itself or as reasonably and clearly qualified by the
responding party, (2) Deny so much of the matter involved in the request as is untrue. (3)

|| Specify so much of the matter involved in the request as to the truth of which the responding

party lacks sufficient information or knowledge”. ...or “state in the answer that a reasonable
inquiry has been made, and that the information known or readily obtainable is insufficient to
enable that party to admit the matter." CCP § 2033.220(b).

Plaintiff must provide responsive information to Carrier’s requests.

PLAINTIFFS’? REASONS WHY FURTHER RESPONSE TO DEFENDANT”:
REQUEST FOR ADMISSION NO. 11 SHOULD NOT BE COMPELLED
As described in Plaintiff's Opposition to Defendant Carrier Corporation’s Motion to

Compel Further Responses to Written Discovery and Request for Sanctions and Plaintiffs’
Request for Sanctions, defendant failed to meet and confer with plaintiff regarding its

KMlgured\ O74 ress CARRERE,
PLAINTIFFS’ RESPONSE TO DEFENDANT CARRIER CORPORATION'S SEPARATE STATEMENT IN SUPPORT OF ITS MOTION
TO COMPEL FURTHER RESPONSES FROM PLAINTIFF TO REQUESTS FOR ADMISSIONOo Oe NA hw B&B Ye

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complaints with plaintiffs’ responses to Carrier Corporation’s Requests for Admission.
Moreover, for the reasons stated below, defendant’s complaints miss the mark.

By citing C.C.P. 2033.220(a) but not subdivision (b) of the same section, defendant
implies that the three options listed in subdivision (a) are the only options available to plaintiffs
in responding to Carrier Corporation’s Requests for Admission, er, plaintiffs may object to
a Request for Admission in its entirety, provided that “the specific ground for the objection
shall be set forth clearly in the response.” (C.C.P. § 2033.220(b).) In their responses to this
request, plaintiffs identified specific terms that render the Request vague, ambiguous and
overbroad. In order to clarify their objection that this request is harassing and burdensome, they
also cited to and quoted from binding appellate decisions regarding the permissible scope of
Requests for Admission, which “are technically not a discovery device but rather a means for
eliminating undisputed matters from the necessity for trial.” (Ty y. (App.3 Dist
1976) 63 Cal.App.3d 916.) Finally, plaintiffs provided two additional clearly stated inc lependent
objections to this request: that the request asks for the disclosure of information prepared by
plaintiffs’ experts, and that it calls for legal conclusions. Plaintiffs’ objections comply with
C.C.P, § 2033.220(b), . oe

In addition to being g procedurally proper, plaintiffs’ objections are valid. As stated in the
quotations plaintiff provided with their original response to this request and as further explained

laintiffs’ counsel in written correspondence to counsel for Carrier Corporation on June 13 and
uly 17 16, 2008, this request is a misuse of the requests for admission. Carrier Corporation has
asked plaintiffs to summarize Rodrick Breckler’s entire life history of using a wide range of
products in a single response. This request is a prime example of objectionable overbreadth.
“When discovery requests are grossly overbroad on their face, and hence do not appear
reasonably related to a legitimate discovery need, a reasonable inference can be drawn of an
intent to harass and improperly burden,” (Obregon v. Superior Court (1998) 67 Cal.App.4th
424, 431). As was found in an order dated April 8, 2004, in David Dryden, et al., v. Asbestos
Defendants (BHC), Superior Court of the State of California in and for the County of San
Francisco, Case No. 322306, requests of this type are “burdensome” and “harassment in

iscovery.”

Rather than “basic paired questions,” as defendant claimed in correspondence with
plaintiffs’ counsel, this request asks plaintiffs to admit or deny a complex set of facts and to
answer a set of questions to which they cannot yet reasonably be expected to have the answers,
Whether or not Rodrick Breckler was exposed toe asbestos from certain products cannot be
answered with sufficient certainty to support an admission or denial without consulting with
experts, such as industrial hygienists. This action was only filed on March 12, 2008, and

plaintiffs do not yet have- and are not yet obligated to disclose- reports prepared by their

experts. Therefore, defendants reliance on v. Superior Court for Los Angeles County
(1963) 215 Cal. App.2d 318, is misplaced. Although the court did hold that plaintiffs” objections
based on expert disclosure, it specifically noted that, “the declaration of plaintiffs' counsel, filed
in connection with the hearing on the motion to compel an admission or a denial, set forth facts
from which it may be inferred: that the Lowes have available to them sources of information as
to the matters involved.” ((1963) 215 Cal.App.2d 318, 323.) As described above, as well as in
correspondence with defense counsel on July 17, 2008, plaintiffs here cannot be expected to
have the information defendant seeks. ‘
In addition, and again as described in correspondence with counsel for Carrier
Corporation, whether or not an‘entity is liable for some portion of Rodrick Breckler’s asbestos
exposure is a question reserved from a trier of fact. Plaintiffs cannot forecast what a finder of
fact would decide if given the facts of the Brecklers’ case, so they are unable to respond to this
request as phrased. “A party's contention may be the subject of discovery, but not the legal
reasoning or theory behind the contention.” (Sav-On Drugs, Inc. v. Superior Court (1975) 15
Cal.3d 1, 5 (citing Burke y. Superior Court of Sacramento County (1969) 71 Cal.2d 276, 284-
85.) Defendant asked not for plaintiffs’ contention, but for legal conclusions they are neither
able nor obligated to make. .

. As described above, plaintiffs’ objections were clearly stated. Moreover, they are
supported by valid legal arguments, nearly all of which were communicated to defense counsel

Klnjurod O87 <7 ves CARRRD. wd 3

PLAINTIFES* RESPONSE TO DEFENDANT CARRIER CORPORATION'S SEPARATE STATEMENT IN SUPPORT OF ITS MOTION
TO COMPEL FURTHER RESPONSES FROM PLAINTIFF TO REQUESTS FOR ADMISSIONpt

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ina series of written correspondence that has gone unanswered. Therefore, plaintiffs’ objections
are valid and no amended response to this request needs to be compelled.

REQUEST FOR ADMISSION NO. 13 :

Admit that RODRICK BRECKLER inhaled asbestos fibers released from products
designed, manufactured, supplied, removed or installed by ALLIS-CHALMERS
CORPORATION PRODUCT LIABILITY TRUST,

PLAINTIFFS’ RESPONSE TO REQUEST FOR ADMISSION NO. 13

Plaintiff objects to Request Nos. 13 through 46, inclusive, on the grounds that defendant
has misused the Requests for Admission, which is not a discovery device but is primarily
designed to set at rest an otherwise triable issue of fact, Internati ter Co. v. Superi
Court (1969) 273 Cal. App,2d 652; Cembrook v. Superior Court (1961) 56 Cal. App.2d 423,
429, Hillman v. Stuls (1968) 263 Cal. App.2d 848, 884-887. “Although a Request for
admissions is technically not a discovery device but rather a means for eliminating undisputed
matters from the necessity for trial, it is nevertheless capable of being abused in the same way
as interrogatories and depositions, and therefore can form the basis for an abuse of process
action.” Twyford v. Twyford, (App.3.Dist. 1976) 63 Cal.App.3d 916, Plaintiff further objects
to Request Nos. 13 through 46, inclusive, on the grounds that they are overly broad, undul
burdensome, and therefore oppressive. Plaintiff further objects to Request Nos. 13 through 46,
inclusive, on the grounds that they call for legal conclusions, Plaintiff further objects to
Request Nos, 13 ugh 46, inclusive, upon the ground that they violate Code of Civil
Procedure § 2017.010 in that defendant improperly seeks information not relevant to the subject
matter of the action, Furthermore, defendant improperly seeks information that is not likely to
lead to discovery of admissible evidence because no logical inference of liability can be drawn
therefrom. Proposition $1, codified as Civil Code § 1431.2, states “In any action for personal
injury, property damage, or wrongful death, based upon principles of comparative fauit, the
lability of each defendant for non-economic damages shall be several only and shall not be
joint. Each defendant shall be liable only for the amount of non-economic damages allocated to
that defendant in direct proportion to that defendant's percentage of fault, and a separate
judgment shal! be rendered against that defendant for that amount.” In light of plaintiff's
objections, plaintiff invites defendant to clarify the purpose of Requests Nos. 13 through 46,
inclusive. :

DEFENDANT’S REASON TO COMPEL FURTHER RESPONSE TO REQUEST FOR
ADMISSION NO. 13 - :

Plaintiff has provided no responsive information to these requests for admission, and
has served only objections. Plaintiff's objections are unfounded. California Code of Civil
Procedure § 2030.010 authorizes the use of admission requests to discern “the truth of specified
matters of fact, opinion relating to fact, or application of Jaw to fact. A request for admission
may relate to a matter that is in controversy between the parties.” CCP § 2017.010 authorizes
discovery that “may relate to the claim or defense of the party seeking discovery or of any other
party to the action.” Here, Carrier is conducting discovery to gather information to support its
defense and Proposition 51 claims for trial. “Information sought through discovery is relevant
to the subject matter if it relates to a claim or defense of the examining party...[and includes]
factual information that supports allegations in the pleadings. . This is true even though a party
has the burden of proof on the issues on which he is seeking discovery.” Dompeling v. Superior
Court (1981) 117 Cal.App.3d 798, 808.

These Requests for Admission seek admission or denial of issues that will be squarely
before a jury at trial. Requesting this information does not require consultation with an expert or
consultant. “...(T)he fact that the request is for the admission of a controversial matter, or one
involving complex facts, or calls for an opinion, is of no moment. If the litigant is able to make
the admission, the time for making it is during discovery procedures, and not at the trial,”
Chodos v. Superior Court for Los Angeles County (1963) 215 Cal.App.2d 318, 323.

“Bach answer in a response to requests for admission shall be as complete and

OF

KMaluced owas CARRRE 4
PLAINTIFFS’ RESPONSE TO DEFENDANT CARRIER CORPORATION’S SEPARATE STATEMENT IN SUPPORT OF ITS MOTION
TO COMPEL FURTHER RESPONSES FROM PLAINTIFF TO REQUESTS FOR ADMISSION.OC Om DA A BR WH

10

a

straightforward as the information reasonably available to the responding permits.” CCP
§ 2033.200(a). Plaintiffs must “(1) Admit so much of the matter involved in the request as is
true, either as expressed in the request itself or as reasonably and clearly qualified by the
responding party. (2) Deny so much of the matter involved in the request as is untrue. (3) _
Specify so much of the matter involved in the request as to the truth of which the responding
party lacks sufficient information or knowledge”. ...or “state in the answer that a reasonable
Inquiry has been made, and that, the information known or readily obtainable is insufficient to
enable that party to admit the matter." CCP § 2033.220(b).

Plaintiff must provide information responsive to Carrier’s requests.

PLAINTIFFS’ REASONS WHY FURTHER RESPONSE TO DEFENDANT’S
REQUEST FOR ADMISSION NO. 1 ILD NOT BE LED

As described in Plaintiff's Opposition to Defendant Carrier Corporation’s Motion to
Compe! Further Responses to Written Discovery and Request for Sanctions and Plaintiffs’
Request for Sanctions, defendant failed to meet and confer with plaintiff regarding its
complaints with plaintiffs’ responses to Carrier Corporation’s Requests for Admission.
Moreover, for the reasons stated below, defendant’s complaints miss the mark.

By citing C.C.P. 2033-220(3) but not subdivision (b) of the same section, defendant
implies that the three.options listed in subdivision (a) are the only options available to plaintiffs
in responding to Carrier Corporation’s Requests for Admission. Rather, plaintiffs may object to
a Request for Admission in its entirety, provided that “the specific ground for the objection
shall be set forth clearly in the response.” (C.C.P. § 2033.220(b).) In their responses to this
request, plaintiffs identified specific terms that render the Request vague, ambiguous and
overbroad. In order to clarify their objection that this request is harassing and burdensome, they
also cited to and quoted from binding appellate decisions regarding the permissible scope of
Requests for Admission, which:“are technically not a discovery device but rather a means for
eliminating undisputed matters from the necessity for trial.” (Twyford v. Twyford, (App.3. Dist,
1976) 63 Cal.App.3d 916.) Finally, plaintiffs provided an additional clearly stated independent
objection to this request, namely that it calls for legal conclusions. Plaintiffs’ objections comply
with C.C.P. § 2033.220(b). . .

In addition to bet procedurally proper, plaintiffs’ objections are valid. As stated in the
quotations plaintiff provided with their original response to this request and as further explained
Plaintiffs counsel in written correspondence to counsel for Carrier Corporation on June 13 and

uly 17, 2008, this request is a tnisuse of the requests for admission, Carrier Corporation has
asked plaintiffs to summarize Rodrick Breckler’s entire life history of using a wide range of
products in a single response. This request is a prime example of objectionable overbreadth.
“When discovery requests are grossly overbroad on their face, and hence do not appear
reasonably related to a legitimate discovery need, a reasonable inference can be drawn of an
intent to harass and improperly burden.” (Obregon v. Superior Court (1998) 67 Cal.App.4th
424, 431). As was found in an order dated April 8, 2004, in David Dryden, et al., v. Asbestos
Defendants (BHC), Superior Court of the State of California in and for the County of San
Francisco, Case No. 322306, requests of this type are “burdensome” and “harassment in

scovery.” .

Rather than “basic paired questions,” as defendant claimed in correspondence with
plaintiffs’ counsel, this request asks plaintiffs to admit or deny a complex set of facts and to
answer a set of questions to which they cannot yet reasonably be expected to have the answers.
Whether or not Rodrick Breckler was exposed fo asbestos from certain products cannot be
answered with sufficient certainty to support an admission or denial without consulting with
experts, such as industrial hygienists, This action was only filed on March 12, 2008, and
plaintiffs do not yet have- and are not yet obligated to disclose- reports prepared by their
experts, Therefore, defendants reliance on Chodos v. Superior Court for Los Angeles County

1963) 215 Cal.App.2d 318, is misplaced. Although the court did hold that plaintiffs” objections

ased on expert disclosure, it specifically noted that, “the declaration of plaintiffs’ counsel, filed
in connection with the hearing on the motion to compel an admission or a denial, set forth facts
from which it may be inferred that the Lowes have available to them sources of information as

KXlphuted 087s Tees CARRAP wpe 5 .
PLAINTIFFS’ RESPONSE TO DEFENDANT CARRIER CORPORATION'S SEPARATE STATEMENT IN SUPPORT OF ITS MOTION
TO COMPEL FURTHER RESPONSES FROM PLAINTIFF TO REQUESTS FOR ADMISSIONOC Oo YN DH Bw NY

mwoN BONN
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to the matters involved.” ((1963) 215 Cal.App.2d 318, 323.) As described above, as well as in
correspondence with defense cdunsel on July 17, 2008, plaintiffs here cannot be expected to
have the information defendant seeks, .

In addition, and again a8 described in correspondence with counsel for Carrier
Corporation, whether or not an entity is liable for some portion of Rodrick Breckler’s asbestos
exposure is a question reserved from a trier of fact. Plaintiffs cannot forecast what a finder of
fact would decide if given the facts of the Brecklers’ case, so they are unable to respond to this
request as phrased. “A party's contention may be the subject of discovery, but not the legal
reasoning or theory behind the contention.” { Sav-On Drugs. Inc, v. Superior Court (1975) 15
Cal.3d 1, 5 (citing Burke i urt of Sacr: ‘ounty (1969) 71 Cal.2d 276, 284-
85.) Defendant asked not for plaintiffs’ contention, but for legal conclusions they are neither
able nor obligated to make. : ,

As described above, plaintiffs’ objections were clearly stated. Moreover, they are
supported-by valid legal arguments, nearfy ali of which were communicated to defense counsel
in a series of written correspondence that has gone unanswered. Therefore, plaintiffs’ objections
are valid and no amended response to this request needs to be compelled.

REQUEST FOR ADMISSION NO. 14

Admit that the asbestos fibers released from products designed, manufactured, supplied,
removed or installed by ALLIS-CHALMERS CORPORATION PRODUCT LIABILITY
TRUST that were inhaled by RODRICK BRECKLER were a substantial factor in causing
RODRICK BRECKLER’S asbestos-related disease. .

PLAINTIFFS’ RESPONSE TO REQUEST FOR ADMISSION NO. 14

Plaintiff objects to Request Nos. 13 through 46, inclusive, on the grounds that defendant
has misused the Requests for Admission, which is not a discovery device but is Bimaily
designed to set at rest an otherwise triable issue of fact. Intemational Harvester Co. v. Superior
Court (1969) 273 Cal. App.2d 652, Cernbrogk y. Superior Court (1961) 56 Cal. App.2d 423,
429; Hillman v. Stuls (1968) 263 Cal.App.2d 848, 884-887. “Although a Request for
admissions is technically not a discovery device but rather a means for eliminating undisputed
matters from the necessity for trial, it is nevertheless capable of being abused in the same way
as interrogatories and depositions, and therefore can form the basis for an abuse of process
action.” f selon v. Twyford, CApp.3 Dist. 1976) 63 Cal.App.3d 916, Plaintiff further objects
to Request Nos. 13 through 46, inclusive, on the grounds that they are overly broad, unduly
burdensome, and therefore oppressive, Plaintiff further objects to Request Nos. 13 through 46,
inclusive, on the grounds that they call for legal conclusions. Plaintiff further objects to
Request Nos. 13 through 46, inclusive, upon the ground that they violate Code of Civil
Procedure § 2017.010 in that defendant improperly seeks information not relevant to the subject
matter of the action. Furthermore, defendant improperly seeks information that is not likely to
lead to discovery of admissible evidence because no logical inference of liability can be drawn
therefrom. Proposition 51, codified as Civil Code § 1431.2, states “In any action for personal
injury, property damage, or wrongful death, based upon principles of comparative fault, the
liability of each defendant for non-economic damages shall be several only and shall not be
joint, Each defendant shall be liable only for the amount of non-economic damages allocated to
that defendant in direct proportion to that defendant's percentage of fault, and a separate
judgment shall be rendered against that defendant for that amount.” In light of plaintiff's

objections, plaintiff invites defendant to clarify the purpose of Requests Nos. 13 through 46,
inclusive.

DEVENDANT Ss TQ CO LL FURTHER SE TO REQUEST FOR

Plaintiff has provided no responsive information to these requests for admission, and
has served only objections. Plaintiff's objections are unfounded. California Code of Civil
Procedure § 2030.010 authorizes the use of admission requests to discern “the truth of specified
matters of fact, opinion relating to fact, or application of law to fact. A request for admission

HeMojured ow ?a7eys-CARRRP wy i :
PLAINTIFFS" RESPONSE TO DEFENDANT: CARRIER CORPORATION’S SEPARATE STATEMENT IN SUPPORT OF ITS MOTION
TO COMPEL FURTHER RESPONSES FROM PLAINTIFF TO REQUESTS FOR ADMISSIONOo CO SR th OR BR Ne

RR RP RN Rm me ee
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may relate to a matter that is in controversy between the parties.” CCP § 2017.010 authorizes
discovery that “may relate to the claim or defense of the party seeking discovery or of any other
party to the action.” Here, Carrier is conducting discovery to gather information to support its
defense and Proposition 51 claims for trial. “Information sought through discovery is relevant
to the subject matter if it relates to a claim or defense of the examining party...[and includes]
factual information that supports allegations in the pleadings... This is true even though a party
has the burden of proof on the issues on which he is seeking discovery.” Dompeling v. Superior
Court (1981) 117 Cal. App.3d 798, 808. _ — :

These Requests for Admission seek admission or denial of issues that will be squarely
before a jury at trial. Requesting this information does not require consultation with an expert or
consultant. “.:.(T)he fact that the request is for the admission of a controversial matter, or one
involving complex facts, or calls for an opinion, is of no moment. If the litigant is able to make
the admission, the time for making it is during discovery procedures, and not at the trial.”
Chodos v. Superior Court for Los Angeles County (1963) 215 Cal. App.2d 318, 323, -

“Each answer in a response to requests for admission shall be as complete and
straightforward as the information reasonably available to the responding party permits.” CCP
§ 2033.200(a). Plaintiffs must “(1) Admit so much of the matter involved in the request as is
true, either as expressed in the request itself or as reasonably and clearly qualified by the
responding party. (2) Deny so much of the matter involved in the request as is untrue. (3)
Specify so much of the matter involved in the request as to the truth of which the responding
party lacks sufficient information or knowledge”....or “state in the answer that a reasonable
inquiry has been made, and that the information known or readily obtainable is insufficient to
enable that party to admit the matter." CCP § 2033.220(b).

Plaintiff must provide information responsive to Carrier’s requests.

PLAINTIFFS’ REASONS WHY FURTHER RESPONSE TO DEFENDANT’S
REQUEST FOR ADMISSION NO. 14 SHOULD NOT BE COMPELLED

As described in Plaintiff's Opposition to Defendant Carrier Corporation’s Motion to
Compel Further Responses to Written Discovery and Request for Sanctions and Plaintiffs’
Request for Sanctions, defendant failed to meet and confer with plaintiff regarding its
complaints with plaintiffs’ responses to Carrier Corporation’s Requests for Admission.
Moreover, for the reasons stated below, defendant’s complaints miss the mark.

By citing C.C.P. 2033 .220(8) but not subdivision (b) of the same section, defendant
implies that the three options listed in subdivision (a) are the only options available to plaintiffs
in responding to Carrier Corporation’s Requests for Admission, Rather, plaintiffs may object to
a Request for Admission in its entirety, provided that “the specific ground for the objection
shall be set forth clearly in the Fesponse. ” (C.C.P. § 2033.220(b),) In their responses to this
request, plaintiffs identified specific terms that render the Request vague, ambiguous and
overbroad. In order to clarify their objection that this request is harassing and burdensome, they
also cited to and quoted from binding appellate decisions regarding the permissible scope of
Requests for Admission, which “are technically not a discovery device but rather a mearis for
eliminating undisputed matters from the necessity for trial.” (Twyford v. Twyford, (App.3.Dist.
1976) 63 Cal.App.3d 916.) Finally, plaintiffs provided an additional clearly stated independent
objection to this request, namely that it calls for legal conclusions. Plaintiffs’ objections comply
with C.C.P. § 2033.220(b).

In addition to being procedurally proper, plaintiffs’ objections are valid. As stated in the
quotations plaintiff provided with their original response to this request and as further explained

laintiffs’ counsel in written correspondence te counsel for Carrier Corporation on Jume 13 and
july 17, 2008, this request is a misuse of the requests for admission. Carrier Corporation has
asked plaintiffs to summarize Rodrick Breckler’s entire life history of using a wide range of
products in a single response. This request is a prime example of objectionable overbreadth.
“When discovery requests are grossly overbroad on their face, and hence do not appear
reasonably related to a legitimate discovery peed, a reasonable inference can be drawn of an

intent to harass and improperly burden.” (Qbregen.y, Seperior Court (1998) 67 Cal. App.4th
424, 431), As was found in an order dated April 8, 2004, in David Dryden, et al., v. ‘Acbestos

kaninetoevenen capnar es 1
PLAINTIFFS’ RESPONSE TO DEFENDANT CARRIER CORPORATION’S SEPARATE STATEMENT [N SUPPORT OF ITS MOTION
TO COMPEL FURTHER RESPONSES FROM PLAINTIFF TO REQUESTS FOR ADMISSIONOo eH DW BR WN =

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Defendants (BHC), Superior Court of the State of California in and for the County of San
Francisco, Case No. 322306, requests of this type are “burdensome” and “harassment in
discovery.”

Rather than “basic paired questions,” as defendant claimed in correspondence with
plaintiffs’ counsel, this request asks plaintiffs to admit or deny a complex set of facts and to
answer a set of questions to which they cannot yet reasonably be expected to have the answers.
Whether or not Rodrick Breckler was exposed to asbestos from certain products cannot be
answered with sufficient certainty to support an admission or denial without consulting with
experts, such as industrial hygienists, This action was only filed on March 12, 2008, and
plaintiffs do not yet have- are not yet obligated to disclose- reports prepared by their
experts. Therefore, defendants reliance on s v. Superior Angel
(1963) 215 Cal.App.2d 318, is misplaced. Although the court did hold that plaintiffs’ objections
based on expert disclosure, it specifically noted that, “the declaration of plaintiffs' counsel, filed
in connection with the hearing on the motion to compel an admission or a denial, set forth facts
from which it may be inferred that the Lowes have available to them sources of information as
to the matters involved.” ((1963) 215 Cal.App.2d 318, 323.) As described above, as well as in

’ correspondence with defense counsel on July 17, 2008, plaintiffs here cannot be expected to

have the information defendantiseeks.

In addition, and again as described in correspondence with counsel for Carrier
Corporation, whether or not an entity is liable for some portion of Rodrick Breckler’s asbestos
exposure is a question reserved from a trier of fact, Plaintiffs cannot forecast what a finder of
fact would decide if given the facts of the Brecklers’ case, so they are unable to respond to this
request as phrased. “A party's contention may be the subject of discovery, but not the legal
reasoning or theory behind the contention.’ (Sav-On Drugs, Inc. ior Court (1975) 15
Cal.3d 1, 3 (citing Burke v. Superior Court of Sacramento County (1969) 71 Cal.2d 276, 284-
85.) Defendant asked not for plaintiffs’ contention, but for legal conclusions they are neither
able nor obligated to make.

As described above, plaintiffs’ objections were clearly stated. Moreover, they are
supported by valid legal arguments, nearly all of which were communicated to defense counsel
in a series of written correspondence that has gone unanswered. Therefore, plaintiffs’ objections
are valid and no amended response to this request needs to be compelled.

REQUEST FOR ADMISSION NO. 15
Admit that RODRICK BRECKLER inhaled asbestos fibers released from products
designed, manufactured, supplicd, removed or installed by CLEAVER-BROOKS, INC.

_ 4
PLAINTIFFS’ RESPONSE TO REQUEST FOR ADMISSION NO. 15

Plaintiff objects to Request Nos. 13 through 46, inclusive, on the grounds that defendant
has misused the Requests for Admission, which is not a discovery device but is primarily
designed to set at rest an otherwise triable issue of fact. Intemational Harvester Co. v. Superior
Court (1969) 273 Cal.App.2d 652; Cembrook v. Superior Court (1961) 56 Cal. App.2d 423,
429; Hillman v. Stuls (1968) 263 Cal.App.2d 848, 884-887. “Although a Request for
admissions is technically not a discovery device but rather a means for eliminating undisputed
matters from the necessity for trial, it is nevertheless capable of being abused in the same way
as interrogatories and depositions, and therefore can form the basis for an abuse of process
action.” “esford ¥. awwiord (App.3, Dist. 1976) 63 Cal_App.3d 916, Plaintiff further objects
to Request Nos. [3 through 46, inclusive, on the grounds that they are overly broad, unduly
burdensome, and therefore oppressive. Plaintiff further objects to Request Nos. 13 through 46,
inclusive, on the grounds that they call for legal conclusions. Plaintiff further objects to
Request Nos. 13 ugh 46, inclusive, upon the ground that they violate Code of Civil
Procedure § 2017.010 in that defendant improperly seeks information not relevant to the subject
matter of the action. Furthermore, defendant improperly seeks information that is not likely to
lead to discovery of admissible evidence because no logical inference of liability can be drawn
therefrom. Proposition 51, codified as Civil Code § 1431.2, states “In any action for personal
injury, property damage, or wrongful death, based upon principles of comparative fault, the

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PLAINTIFFS’ RESPONSE TO DEFENDANT CARRIER CORPORATION'S SEPARATE STATEMENT IN SUPPORT OF ITS MOTION,
TO COMPEL FURTHER RESPONSES FROM PLAINTIFF TO REQUESTS FOR ADMISSIONOo Om MA OH BR BW ON

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liability of each defendant for non-economic damages shall be several only and shall not be
joint. h defendant shall be liable only for the amount of non-economic damages allocated to
that defendant in direct proportion to that defendant's percentage of fault, and a separate
judgment shall be rendered against that defendant for that amount.” In Tight of plaintiff's
objections, plaintiff invites defendant to clarify the purpose of Requests Nos. 13 through 46,
inchusive.

DEFENDANT’S REASON TO COMPEL FURTHER RESPONSE TO REQUEST FOR
ADMISSION NO. 15 oo,

Plaintiff has provided no responsive information to these requests for admission, and
has served only objections. Plaintiff's objections are unfounded. California Code of Civil
Procedure § 2030.010 authorizes the use of admission requests to discern “the truth of specified
matters of fact, opinion relating to fact, or application of law to fact. A request for admission
may relate to a matter that is in controversy between the parties.” CCP § 2017.010 authorizes
discovery that “may relate to the claim or defense of the party seeking discovery or of any other
party to the action.” Here, Carrier is conducting discovery to gather information to support its
defense and Proposition 51 claims for trial. “Information sought through discovery is relevant
to the subject matter if it relates to a claim or defense of the examining party...[and includes]
factual information that supports allegations in the pleadings...This is true even though a party
has the burden of proof on the issues on which he is seeking discovery.” Dompeling v. Superior
Court (1981) 117 Cal. App.3d 798, 808. :

These Requests for Admission seek admission or denial of issues that will be squarely
before a jury at trial. Requesting this information does not require consultation with an expert or
consultant. “,..(T)he fact that the request is for the admission of a controversial matter, or one
involving complex facts, or calls for an opinion, is of no moment. If the litigant is able to make
the admission, the time for making it is during discovery procedures, and not at the trial.”
Chodos, vy. Superior Court for Los Angeles County (1963) 215 Cal App. 2d 318, 323.

“Bach answer in a response to requests for admission shall be as complete and
straightforward as the information reasonably available to the responding party permits.” CCP
§ 2033.200(a). Plaintiffs must “(1) Admit so much of the matter involved in the request as is
true, either as expressed in the request itself or as reasonably and clearly qualified by the
responding party. (2) Deny so much of the matter involved in the request as is untrue. (3)
Specify so much of the matter involved in the request as to the truth of which the responding
party lacks sufficient information or knowledge”. ...or “state in the answer that a reasonable
Inquiry has been made, and that the information known or readily obtainable is insufficient to
enable that party to admit the matter." CCP § 2033.220(b).

Plaintiff must provide information responsive to Carrier’s requests.

PLAINTIFFS” REASONS WHY FURTHER RESPONSE TO DEFENDANT’S
REQUEST FOR ADMISSION NO. 15 SHOULD NOT BE COMPELLED

° As described in Plaintiff's Opposition to Defendant Carrier Corporation’s Motion to
Compel Further Responses to Written Discovery and Request for Sanctions and Plaintiffs’
Request for Sanctions, defendant failed to meet and confer with plaintiff regarding its
complaints with plaintiffs’ responses to Carrier Corporation’s Requests for Admission.
Moreover, for the reasons stated below, defendant’s complaints miss the mark.

-By citing C.C.P. 2033.220(a) but not subdivision (b) ofthe same section, defendant -
implies that the three options listed in subdivision (a) are the only options available to plaintiffs
in responding to Carrier Corporation’s Requests for Admission. Rather, plaintiffs may object to
a Request for Admission in its entirety, provided that “the specific ground for the objection
shail be set forth clearly in the response.” (C.C.P. § 2033.220(b).) In their responses to this
request, plaintiffs identified specific terms that render the Request vague, ambiguous and
overbroad. In order to clarify their objection that this request is harassing and burdensome, they
also cited to and quoted from binding appellate decisions regarding the permissible scope of
Requests for Admission, which “are technically not a discovery device but rather a means for
eliminating undisputed matters from the necessity for trial.” (Twyford v. Twyford, (App.3 Dist.

KSbyredh 1087 4Firss- CARRRP. 9 >

PLAINTIFFS’ RESPONSE TO DEPENDANT CARRIER CORPORATION’S SEPARATE STATEMENT IN SUPPORT OF ITS MOTION
TO COMPEL FURTHER RESPONSES FROM PLAINTIFF TO REQUESTS FOR ADMISSIONDo Oo KD DR WH & BN

1976) 63 Cal.App.3d 916.) Finally, plaintiffs provided an additional clearly stated independent
objection te this request, namely that it calls for legal conclusions. Plaintiffs’ objections comply
with C.C.P. § 2033.220{b).
in addition to being procedurally proper, plaintiffs’ objections are valid. As stated in the

quotations plaintiff provided with their original response to this request and as further explained
plaintiffs’ counsel in written correspondence to counsel for Carrier Corporation on June 13 and
July 17, 2008, this request is a misuse of the requests for admission. Carrier Corporation has
asked plaintiffs to summarize Rodrick Breckler’s entire life history of using a wide range of
products in a single response. This request is a prime example of objectionable overbreadth.
“When discovery requests are grossly overbroad on their face, and hence do not appear
reasonably related to a legitimate discovery need, a reasonable inference can be drawn of an
intent to harass and improperly burden.” (Obregon v. Superior Court (1998) 67 Cal.App.4th
424, 431), As was found in an order dated Apri! 8, 2004, in David Dryden, et al., v. Asbestos
Defendants (BHC), Superior Court of the State of California in and for the County of San
Francisco, Case No. 322306, requests of this type are “burdensome” and “harassment in

iscovery.” .

Rather than “basic paired questions,” as defendant claimed in correspondence with

plaintiffs’ counsel, this request asks plaintiffs to admit or deny a complex set of facts and to
answer a set of questions to which they cannot yet reasonably be expected to have the answers.
Whether or not Rodrick Breckler was exposed to asbestos from certain products cannot be
answered with sufficient certainty to support an admission or denial without consulting with
experts, such as industrial hygienists. is action was only filed on March 12, 2008, and
plaintiffs do not yet have- and are not yet obligated to disclose- reports prepared by their
experts, Therefore, defendants reliance on Chodos y. Superior Court for Los Angeles County
(1963) 215 Cal.App.2d 318, is misplaced. Although the court did hold that plaintiffs’ objections
based on expert disclosure, it specifically noted that, “the declaration of plaintiffs’ counsel, filed
in connection with the hearing on the motion to compel an admission or a denial, set forth facts
from which it may be inferred that the Lowes have available to them sources of information as
to the matters involved.” ((1963) 215 Cal.App.2d 318, 323.) As described above, as well as in

J correspondence with defense counsel on July 17, 2008, plaintiffs here cannot be expected to

have the information defendant seeks. :

In addition, and again as described in correspondence with counsel for Carrier
Corporation, whether or not an entity is liable for some portion of Rodrick Breckler’s asbestos
exposure is a question reserved from a trier of fact. Plaintiffs cannot forecast what a finder of
fact would decide if given the facts of the Brecklers’ case, so they are unable to respond to this
request as phrased, “A party's contention may be the subject of discovery, but not the le
reasoning or theory behind the contention.” (Sav-On Drugs, Inc. v. Superior Four (1975) 15
Cal.3d 1, 5 (citing Burke v. Superior Court of Sacramento County (1969) 71 Cai.2d 276, 284-
85.) Defendant asked not for plaintiffs’ contention, but for legal conclusions they are neither
able nor obligated to make. oo.

As described above, plaintiffs’ objections were clearly stated. Moreover, they are
supported by valid legal arguments, nearly all of which were communicated to defense counsel
in a series of written correspondence that has gone unanswered. Therefore, plaintiffs’ objections
are valid and no amended response to this request needs to be compelled. .

REQUEST FOR ADMISSION NO. 16
Admit that the asbestos fibers released from products designed, manufactured, supplied,
removed or installed by CLEA VER-BROOKS, INC. that were inhaled by RODRICK
BRECKLER were a substantial factor in causing RODRICK BRECKLER’S asbestos-related
lisease. :

PLAINTIFFS’ RESPONSE TO REQUEST FOR ADMISSION NO. 16
Plaintiff objects to Request Nos. 13 through 46, inclusive, on the grounds that defendant
has misused the Requests for Admission, which is not a discovery device but is primarily

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PLAINTIFFS’ RESPONSE TO DEFENDANT CARRIER CORPORATION'S SEPARATE STATEMENT IN SUPPORT OF ITS MOTION
‘TO COMPEL FURTHER RESPONSES FROM PLAINTIFF TO REQUESTS FOR ADMISSIONww ew NM A A BR WN

10

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designed to set at rest an otherwise triable issue of fact. International Harvester Co. v, Superior
Court (1969) 273 Cal.App.2d 652; Cembrook v, Superior Court (1961) 56 Cal. App.2d 423,
429; Hillman v. Stuls (1968) 263 Cal App.2d 848, 884-887. “Although a Request for
admissions is technically not a discovery device but rather a means for eliminating undisputed
matters from the necessity for trial, it is nevertheless capable of being abused in the same way
as interrogatories and depositions, and therefore can form the basis for an abuse of process
action.” Twyford v. Twyford, (App.3 Dist. 1976) 63 Cal.App.3d 916, Plaintiff further objects
to Request Nos. 13 through 46, inclusive, on the grounds that they are overly broad, unduly
burdensome, and therefore oppressive. Plaintiff er objects to Request Nos. 13 through 46,
inclusive, on the grounds that they call for legal conclusions. Plaintiff further objects to
Request Nos. 13 through 46, inclusive, upon the ground that they violate Code of Civil
Procedure § 2017.010 in that defendant improperly seeks information not relevant to the subject
matter of the action. Furthermore, defendant improperly seeks information that is not likely to
lead to discovery of admissible evidence because no logical inference of liability can be drawn
therefrom. Proposition 51, codified as Civil Code § 1431.2, states “In any action for personal
inary, prope: damage, or wrongful death, based upon principles of comparative fault, the
liability of each defendant for non-economic damages shall be several only and shall not be
joint. Each defendant shall be liable only for the amount of non-economic damages allocated to
that defendant in direct proportion to that defendant's percentage of fault, and a separate
judgment shall be rendered against that defendant for that amount.” In light of plaintiff's
objections, plaintiff invites defendant to clarify the purpose of Requests Nos. 13 through 46,
inclusive.

DEFENDANT’ Ti RTHE: NSE TO REQUEST FOR

ADMISSION RO. 16 :
Plaintiff has provided no responsive information to these requests for admission, and

has served only objections, Plaintiff's objections are unfounded. California Code of Civil
Procedure § 2030.010 authorizes the use of admission requests to discern “the truth of specified
matters of fact, opinion relating to fact, or application of law to fact. A request for admission
may relate to a matter that is in controversy between the parties.” CCP § 2017.010 authorizes
discovery that “may relate to the claim or defense of the party seeking discovery or of any other
party to the action.” Here, Carrier is conducting discovery to gather information to support its
defense and Proposition 51 claims for trial. “Information sought through discovery is relevant
to the subject matter if it relates to a claim or defense of the examining party...[and includes]
factual information that supports allegations in the pleadings... This is true even though a party
has the burden of proof on the issues on which he is secking discovery.” Dompeling v. Superior
Court (1981) 117 Cal.App.3d 798, 808.

These Requests for Admission seek admission or denial of issues that will be squarely
before a jury at trial. Requesting this information does not require consultation with an expert or
consultant. “...(T)he fact that the request is for the admission of a controversial matter, or one
involving complex facts, or calls for an opinion, is of no moment. If the litigant is able to make
the admission, the time for making it is during discovery procedures, and not at the trial.”
Chodos v. Superior Court for Los Angeles County (1963) 215 Cal.App.2d 318, 323.

“Each answer in a response to requests for admission shall be as complete and”
straightforward as the information reasonably available to the responding party permits.” CCP
§ 2033.200(a). Plaintiffs must (1) Admit so much of the matter involved in the request as is
true, either as expressed in the request itself or as reasonably and clearly qualified by the
responding party. (2) Deny so much of the matter involved in the request as is untrue. (3)
Specify so much of the matter involved in the request as to the truth of which the responding
party lacks sufficient information or knowledge”....or “state in the answer that a reasonable
inquiry has been made, and that the information known or readily obtainable is insufficient to
enable that party to admit the matter." CCP § 2033.