On December 17, 2010 a Request,Application was filed involving a dispute between Ross, Jean, Ross, Robert, and Acco Engineered Systems, Inc., Advanced Mechanical, Advance Mechanical Contractors, Inc., Air Systems Mechanical Contractor, A & K Heating Company, Inc., Albay Construction Company, Allen-Simmons Heating & Sheet Metal Company Inc., Allied Fire Protection, Allied Sprinkler Company, Inc., Allsberry Mechanical Corporation, Anderson, Rowe & Buckley, Inc., Associated Insulation Of California, A. Teichert & Son, Inc., Balliet Bros. Construction Corporation, Banner Drywall & Painting Co. Inc., Barnes Construction Co., Bayer Cropscience Inc., Bayer Cropscience, Inc., Successor To Amchem, Bell Products Inc., Beta Mechanical Contractors, L.P., Bragg Investment Company, Inc., Cahill Construction Co., Inc., Cahill Construction Services, Inc., Cahill Contractors, Inc., California Drywall Co., Castro Construction, Inc., C.C. Moore & Co. Engineers, Cincinnati Valve Company, Cjr Plastering, Clausen-Patten, Inc., Clausen-Patten, Inc., A Dissolved Corporation, Climate Air, Inc., Climate Control Co., Inc., Collins Electrical Company, Inc., Commair Mechanical Services, Consolidated Insulation, Inc., Cosco Fire Protection, Inc., Cosco Sprinkler, Critchfield Mechanical, Inc., C & R Plastering, Inc., Csk Auto, Inc., Cupertino Electric, Inc., Delucchi Sheet Metal Works, Dilland Sederberg Plumbing, Does 1-8500, Domco Products Texas Inc., Domco Products Texas, L.P., Donovan Construction, Dorn Refrigeration, Dorn Refrigeration And Air Conditioning, Dpr Construction, Duro Dyne Corporation, D.W. Nicholson Corporation, D. Zelinsky & Sons, Inc., Emil J. Weber Electric Co., Erwin Mechanical Inc., Ex- Fme, Inc. (Fka Fischbach And Moore Electric,, Fairmont Hotel Company, Fluor Corporation, Foley Electric Co., Foley Electric, Inc., Fuller Floors, General Mills, Inc., Giampolini & Co., Graybar Electric Company, Inc., Hanson Permanente Cement, Inc. Formerly Known As, Harold Beasley Plumbing And Heating, Inc., Harry Lee Plumbing & Heating, H & C Investment Associates, Inc., Henry C. Beck Company, Imperial Plastering & Drywall, Insulation Specialties, Inc., James A. Nelson Co., Inc., Johnson Controls, Inc., Jones Plastering Company, Joseph Bruno Sheet Metal Co., Inc., J.T. Thorpe & Son, Inc., J.W. Mcclenahan Company, J.W. Mcclenahan Company, Inc., Kentile Floors, Inc., Laub Sheet Metal Works, Lone Star Industries, Inc., Mack Construction Co., Magee, Robert, Malm Metal Products, Inc., Marine Engineering And Supply Company, Marshco Auto Parts, Inc., Mattock Construction Company, Mcclure Electric, Inc., Metropolitan Life Insurance Company, Michael Brothers, Midstate Mechanical, Inc., Mitchell Bros. Truck Lines, Inc., Monsanto Company, Sued As "Pharmacia Corporation", Oakfabco, Inc., Ortho-Craft, Pacific Fireproofing, Pacific Mechanical Corporation, Parker Insulation Contracting & Supply Co. Inc., Perini Corporation, Pharmacia Corporation, Which Will Do Business In, Pribuss Engineering, Pribuss Engineering, Inc., Raymond Interior Systems-North, Red Top Electric Co. Emeryville, Inc., Robert Magee, Rollie R. French, Inc., Rollins Construction, Rountree Plumbing & Heating Inc., Scott Co. Of California, S F L, Inc., S.J. Amoroso Construction Co., Inc., Slakey Brothers, Inc., Sugden Engineering Co., Swinerton Builders, Temper Insulation, Temporary Plant Cleaners, Inc., Texaco, Inc., The Goodyear Tire & Rubber Company, The W.W. Henry Company, Tuttle And Bailey Corp, Van Mulder Sheetmetal, Van-Mulder Sheet Metal, Inc., Walnut Creek Sheet Metal, Furnace & Air, W.C. Thomason, W.C. Thompson, Webcor Builders, Inc., Westburne Supply, Inc., Willard Electric, Wright Schuchart Harbor, Wright Schuchart Harbor Company, Ross, Jean, Ross, Robert, for civil in the District Court of San Francisco County.
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MOAI SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet May-16-2013 1:46 pm Case Number: CGC-10-275731 Filing Date: May-16-2013 1:42 Filed by: DANA OKAZAKI Juke Box: 001 Image: 04058666 ORDER ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS 001004058666 Instructions: Please place this sheet on top of the document to be scanned.PATRICIA G. ROSENBERG, SBN 154820 HAAS & NAJARIAN, LLP 58 Maiden Lane, Second Floor San Francisco, CA 94108 Telephone: 415.788.6330 JAMES N. SINUNU, SBN 62802 JUNIPER BACON, SBN 256687 SINUNU BRUNI LLP 333 Pine Street, Suite 400 San Francisco, CA 94104 Telephone: 415.362.9700 Facsimile: 415.362.9707 jsinunu@sinunubruni.com ‘Jbaco: inunubruni.com Attorneys for Defendant MCCLURE ELECTRIC, INC. San Francleeo County Superior Court MAY 16 2013 SUPERIOR COURT OF THE STATE OF CALIFORNIA CIFY AND COUNTY OF SAN FRANCISCO-UNLIMITED JURISDICTION ROBERT ROSS and JEAN ROSS, Plaintiffs, vs. €.C. MOORE & CO. ENGINEERS; Defendants as Reflected on Exhibit 1 attached to the Summary Complaint herein; and DOES 1-8500. Defendants. NN ee ee ee GaseNox © Ca 0. 278731 ORDER OBJECTIONS 1 ‘TO EVIDENCE SUBMITTED IN SUPPORT OF PLAINTIFFS’ SEPARATE STATEMENT . OF MATERIAL FACTS IN OPPOSITION TO DEFENDANT MCCLURE ELECTRIC, INC.’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Date: MAY, 46,2018 Time: - 9:30 am. Dept: 303 Judge: Hon. Terji L. Jackson Complaint Filed: December 17, 2010 Trial Date: June 10,2013 Pursuant to California Rules of Court, Rule 3.1354, Defendant and moving party, MCCLURE ELECTRIC, INC. (hereinafter “MCCLURE”), hereby..submits the following objections to evidence cited and relied upon in Plaintiffs’ Opposition-to MCCLURE's Motion for Summary. Judgment or, in the. alternative, Motion for Summary Adjudication on the L ‘OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF PLAINTIFFS" OPPOSITION TO MCCLURE. ‘ELECTRIC, INC!S. MOTION} FOR SUMMARY JUDGMENT.following grounds: Objections to Robert Ross's Declaration Objection Number 1 Proffered Evidence: Robert Ross's declaration in its entirety. Grounds for Objection: MCCLURE hereby objects to introduction into evidence of Robert Ross's declaration in. its entirety, as it is inadmissible under Whitmire v. Ingersoll- Rand Co. (2010) 184 Cal. App. 4th 1078; D'Amico v. Board of Medical Examiners (1974) 11 C.3rd 1; McGonnell v. Kaiser Gypsum Company, Inc. (2001) 98 Cal-App.4th 1098; and Casey v. Perini Corp. (2012) 206 Cal. App. 4th'1222, at 1226.) Further objections: Hearsay (Evid. Code, §1200), DiCola -v. White Brothers Performance Products, Inc. (2008) 158 Cal. App. 4th 666; Irrelevant (Evid. Code, §§ 210, 350, 352), Taylor v. Elliott Turbomachinery Co., Inc. (2009) 171 Cal.App.4th 564; Vague, Ambiguous, Misleading, Overbroad (Evid. Code § 352); Lacks personal knowledge (Evid. Code, § 702), Lacks foundation (Evid. Code, §§ 403, 405); Exclusion of Prejudicial Evidence (Evid. Code, § 352); Insufficient Qualification for an Expert (Evid. Code, § 720); Outside Scope of Expert Opinion. (Evid. Code, § 801); Improper Opinion (Evid. Code -§§ 800, 803). Additionally, expert opinion cannot be based on inadmissible evidence. (People v, Nicolaus (1991) 54 Cal.3d 551 and People v, Coleman (1985) 38 Cal.3d 69.) MCCLURE also objects to this declaration because it states legal. conclusions, not evidentiary facts. (Hayman v. Block (1986) 176 Cal-App.3d 629, 638-639.) Further, any opinion expressed as an expert's testimony on an issue of law is not admissible, including an application of law to facts, as such testimony usurp's the judge's role and responsibilities. (Summers ¥, A. L Gilbert Co. (1999) 69 Cal .App.4th 1155.) | Court's Ruling on Sustained: _ Objection 1: Overruled: ‘ft ‘if ‘it 2 OBJECTIONS TO. EVIDENCE SUBMITTED IN SUPPORT OF PLAINTIFFS’ OPPOSITION ‘FO MCCLURE ELECTRIC, INC.'S MOTION FOR SUMMARY. JUDGMENTaf oN Objections to Robert Ross's Declaration Objection Number 2 Proffered Evidence: As I explained in my deposition, based on my knowledge, experience and training, I know that the fireproofing material MCCLURE disturbed in my presence contained asbestos because I am able to distinguish by color, texture and smell the asbestos-containing fireproofing material from the non-asbestos variety. (Ross. Declaration, pe 2:13-16.) : Grounds for Objection: ‘Irrelevant (Evid. Code § 350); Vague, Ambiguous, Misleading, Overbroad. (Evid. Code § 352); Lacks personal knowledge (Evid. Code, § 702); Lacks foundation (Evid. Code, §§ 403, 405); Exclusion of Prejudicial Evidence (Evid. Code, § 352); Insufficient Qualification for an Expert (Evid. Code, § 720); Outside Scope of Expert Opinion (Evid. Code, § 801); Improper Opinion (Evid. Code §§ 800, 803). Court's Ruling on Sustained: Objection 2: Overruled: i 7 Objections to Robert Ross's Declaration Objection Number 3 Proffered Evidence: As a career insulator working with and around asbestos- containing materials on construction sites, I have come to leam and be able to differentiate between the old, asbestos-containing fireproofing, and new, non-asbestos containing fireproofing. The older type of fireproofing that contained asbestos had a finer consistency than the new fireproofing. Additionally, the older asbestos-containing fireproofing had fibers that stuck out of it when viewed up, close whereas, the asbestos-free fireproofing did not. 1 did. not see this later type of fireproofing on jobsites until approximately the mid-1970s. 1 learned that the old fireproofing described above contained asbestos because when I was at a job in the late 1970s in San Francisco wherein that type of fireproofing was used throughout it required proper asbestos abatement removal, which I had later become trained on. At that job, I saw the old-type of fireproofing being abated-and the new type of fireproofing being 3 OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF PLAINTIFFS’. OPPOSITION TO MCCLURE ELECTRIC, INC.'S MOTION FOR SUMMARY JUDGMENT 1 | | | |applied. On that job, I leamed how to differentiate between asbestos-fireproofing versus the non-asbestos type. That knowledge was confirmed on various different settings throughout my career, especially in the 1980s when controls began to be instituted to protect workers from exposure to asbestos-containing materials. (Ross Declaration, pg 2:17-3:2.) Grounds for Objection: Irrelevant (Evid. Code § 350); Vague, ‘Ambiguous, Misleading, Overbroad (Evid. Code § 352); Lacks personal knowledge (Evid. Code, § 702); Lacks foundation (Evid. Code, §§. 403, 405); Overly Broad, Exclusion of Prejudicial Evidente (Evid. Code, § 352); Insufficient Qualification for an Expert (Evid. Code, § 720); Outside Scope of Expert Opinion (Evid. Code, § 801); Improper Opinion (Evid. Code §§ 800, 803). "Court's Ruling on | ean | Objection 3: | Oversed: Objections to Robert Ross's Declaration Objection Number 4 Proffered Evidence: 1 distinctly remember that job and how that building had that old, gray, finer. material with fibers sticking out, spray-on asbestos fireproofing that MCCLURE and the other trades were scraping and shooting their hangers into. While it is possible that I may have gotten the name of the building wrong at my deposition, given that I worked in hundreds of different jobsites, many of which were high-rise buildings in downtown San Francisco substantially similar to the Mills Building, I remain certain that I saw MCCLURE ‘employees disturb asbestos-containing fireproofing near me'.on three different jobs between 1967 and 1972. (Ross Declaration, pg 3:9-16.) Grounds for Objection: — Irrelevant (Evid. Code § 350); Vague, Ambiguous, Misleading, Overbroad (Evid. Code § 352); Lacks personal knowledge (Evid. Code, § 702); Lacks foundation. (Evid..Code, §§ 403, 405); Overly Broad, Exclusion of Prejudicial Evidence (Evid. Code, § 352); Insufficient Qualification for an Expert (Evid. Code, § 720); Insufficient Qualification for an Expert (Evid, Code, § 720); Outside. Scope of Expert Opinion (Evid. Code, § 801); Improper Opinion (Evid. Code §§ 800, 803). 4- OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF PLAINTIFFS’ OPPOSITION ‘TO MCCLURE ELECTRIC, INC'S MOTION FOR SUMMARY JUDGMENTCourt's Ruling on , Objection 4: Objections to Robert Ross's Declaration Objection Number 5 Proffered Evidence: MCCLURE employees did not take any measures to avoid or reduce the creation of dust from their work. They did not physically isolate the areas where they disturbed asbestos containing materials and created dust nor did they undertake any measures to warn or exclude workers like myself from being in close proximity when they created asbestos dust. (Ross Declaration, pg 3:17-20.) Grounds for Objection: Irrelevant (Evid. Code § 350); Vague, Ambiguous, Misleading, Overbroad (Evid. Code § 352); Lacks personal knowledge (Evid. Code, § 702); Lacks foundation (Evid. Code, §§ 403, 405); Exclusion of Prejudicial Evidence (Evid. Code, §. 352); Insufficient Qualification for an Expert (Evid. Code, § 720); Outside Scope of Expert Opinion (Evid, Code, §.801); Improper Opinion (Evid. Code §§ 800, 803). Court's Ruling on Sustained: Objection 5: Overruled: . Objections to Robert Ross's Testimony Objection Number 6 Proffered Evidence:' As he testified in his deposition, the spray-on fireproofing material. that he saw MCCLURE employees scrape and disturb was an old, gray, finer material with fibers. sticking out. It was-dry and dusty when MCCLURE. scraped or shot through that fireproofing material. As he explained in his deposition, based on his knowledge, experience and training, Mr. ROSS knows that the fireproofing material MCCLURE disturbed in his presence contained asbestos because he is able to distinguish by color, texture and smell the asbestos-containing fireproofing material from the non-asbestos variety. (Plaintiffs Separate Statement, Para 4. Ross Deposition, at 2359:15-17, 2360:24- 2361:1, 2360:21-2362:3.) 5 OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF PLAINTIFFS’ OPPOSITION: TO MCCLURE ELECTRIC, INC.'S MOTION FOR SUMMARY JUDGMENTGrounds for Objection: Irrelevant (Evid. Code § 350); Vague, Ambiguous, Misleading, Overbroad (Evid. Code § 352); Lacks personal knowledge (Evid. Code, § 702); Lacks foundation (Evid. Code, §§ 403, 405); Exclusion of Prejudicial Evidence (Evid. Code, § 352); Insufficient Qualification for an Expert (Evid. Code, § 720); Outside Scope of Expert Opinion (Evid. Code, § 801); Improper Opinion (Evid. Code §§ 800, 803). Court's Ruling on | Sustained: | Objection 6: Overruled: | Dated: 5] | (p » 2013 ) ION TERRI L. JACKSON ERIOR COURT JUDGE TERI L. JACKSON 6 OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF PLAINTIFFS’. OPPOSITION TO MCCLURE ELECTRIC, INC'S MOTION FOR SUMMARY JUDGMENT