Motion,Ex Parte: ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS

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                                NOVATO, CALIFORNIA 94948-6169

oem NY KD he BY

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

OREN P. NOAH, ESQ., S.B. #136310 ELECTRONICALLY
JAMIE A, NEWBOLD, ESQ., S.B. #207186 FILED
BRAYTON#PURCELL LLP a
Attomeys at Law Superior Court of California,
222 Rush Landing Road County of San Francisco
P.O. Box 6169 APR 25 2013
Novato, California 94948-6169 Clerk of the Court
(415) 898-1555 BY: ALISON AGBAY
Tentative Ruling Contest Email: contestasbestosTR@braytonlaw.com Deputy Clerk

Attorneys for Plaintiffs
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

ASBESTOS
No. CGC-10-275731

ROBERT ROSS and JEAN ROSS,

Plaintiffs,
PLAINTIFFS' EVIDENTIARY
OBJECTIONS TO DEFENDANT
COMMAIR MECHANICAL SERVICES’S
MOTION FOR SUMMARY JUDGMENT
OR, IN THE ALTERNATIVE, SUMMARY
ADJUDICATION

vs.

C.C. MOORE & CO. ENGINEERS;
Defendants as Reflected on Exhibit |
attached to the Summary Complaint

herein; and DOES 1-8500.

eee

Date: May 9, 2013

Time: 9:30 a.m.

Dept: 503, Hon. Teri L. Jackson
Trial Date: June 10, 2013

Action Filed: December 17, 2010

Plaintiffs respectfully request the Court to rule on plaintiffs’ evidentiary objections in
accordance with Cal. Rules of Court, rules 3.1352 and 3.1354, Reid v. Google, Inc. (2010) 50
Cal.4th 512, Vineyard Springs Estates, LLC v. Super. Ct. (Wyatt) (2004) 120 Cal.App.4th 633,

635; Sambrano v, City of San Diego (2001) 94 Cal. App.4th 225, 235; Laird v. Capital

Cities/ABC, Inc. (1998) 68 Cal.App.4th 727, 736, and Weil & Brown, Cal. Practice Guide:
Civil Procedure Before Trial (The Rutter Group 2005) 4 10:301.1, ch. 10-F.

Plaintiffs object to and move to strike defendant’s proffered evidence as follows:
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1. Plaintiffs object to, and move to strike, the deposition transcripts of
Mr. Steve Steele, Exhibit 2 to the Declaration of Jeffrey Birkner, Ph. D. filed

concurrently with defendant’s moving papers.

Material Objected To:

1. Deposition of Steve Steele in its entirety.

COURT’S RULING ON OBJECTION NO. 1:

Dated:

Grounds for Objection:

1. This deposition was taken in a matter
other than this case. The witness has not
been shown to be unavailable. Therefore
the testimony is inadmissible hearsay,
offered without exception.

Further, Mr. Steele testified in his
deposition that he did not become a
journeyman in the union until 1972, so any
opinions that he may have about the union
or its members prior to 1972 are lacking in
foundation, speculative, irrelevant and
therefore madmissible. (See defense
Exhibit 2 to Birkner Declaration, p. 19:1-3.)

Sustained:

Overruled:

2. Plaintiffs object to, and move to strike, the Declaration of Jeffrey Birkner,

Ph.D. in its entirety.

Material Objected To:

2. Birkner Declaration in its entirety.

Grounds for Objection:

2. The declaration lacks foundation, is
based upon speculation and hearsay, is
irrelevant and therefore inadmissible.
(Evid. Code §§ 210, 350, 403, 405, 702,
1200-1205.)

Birkner’s opinions regarding the potential
authenticity of The Asbestos Worker
journals lack foundation, are based upon
speculation and hearsay (Deposition of
Steve Steele - see objection No. | above),
are therefore irrelevant and inadmissible.

No foundation has been offered to show that
Birkner is capable of authenticating any
volumes of The Asbestos Worker journals,
let alone those at issue here.

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COURT’S RULING ON OBJECTION NO, 2:

Dated:

Sustained:

Overruled:

3. Plaintiffs object to, and move to strike, the Declaration of Jeffrey Birkner,

Ph. D., paragraph 11 in its entirety, and corresponding exhibit.

Material Objected To:

3, Birkner Decl., paragraph 11, which
states as follows:

“Steve Steele testified that he is the
Custodian of Records for Local 16, and the
Custodian of Records for all categories of
documents requested per his deposition
notice, except for the journals from his
Union (i.c., the International Association of
Heat & Frost Insulators and Asbestos
Workers). Mr. Steve Steele testified that he
believes that the International Association
of Heat & Frost Insulators and Asbestos
Workers Union possesses copies of The
Ashestos Worker journals from the
beginning of its publication, but he did not
attempt to obtain ‘old’ copies of The
Asbestos Worker journals in response or in
preparation for his deposition. (Deposition
of Steve Steele, Vol. 1, 31:22-32:16, of
Exhibit 2.)”

COURT’S RULING ON OBJECTION NO, 3:

Dated:

Grounds for Objection:

3, The declaration lacks foundation, is
based upon speculation and hearsay, is
irrelevant and therefore inadmissible.
(Evid. Code §§ 210, 350, 403, 405, 702,
1200-1205.)

Mr. Steele’s deposition was taken in a
matter other than this case. The witness has
hot been shown to be unavailable.
Therefore the testimony is inadmissible
hearsay, offered without exception.

Further, Mr. Steele testified in his
deposition that he did not become a
journeyman in the union until 1972, so any
opinions that he may have about the union
or its members prior to 1972 are lacking in
foundation, speculative, irrelevant and
therefore inadmissible. (See defense
Exhibit 2 to Birkner Declaration, p. 19:1-3.)

Sustained:

Overruled:

4, Plaintiffs object to, and move to strike, the Declaration of Jeffrey Birkner,

Ph. D,, paragraph 12 in its entirety, and corresponding exhibit.

Material Objected To:

4. Birkner Decl., paragraph 12, which
states as follows:

“At his deposition, Mr, Steve Steele
testified that The Asbestos Worker is the
official journal of the International
Association of Heat & Frost Insulators and

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Grounds for Objection:

4, The declaration lacks foundation, is
based upon speculation and hearsay, is
irrelevant and therefore inadmissible.
(Evid. Code §§ 210, 350, 403, 405, 702,
1200-1205.)

Mr. Steele’s deposition was taken in a

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Asbestos Workers Union, of which Local
No, 16 is a part. Mr. Steele also indicated
that The Asbestos Worker is published by
the International Association of Heat &
Frost Insulators and Asbestos Workers
Union and is sent out several times per year.
He also believes that the journals are sent
on or about the date indicated on the
journals to cach and every member of the
International Association of Heat & Frost
Insulators and Asbestos Workers Union.
(Deposition of Steve Steele, Vol. 1, 37:12-
38:25, of Exhibit 2.)”

COURT’S RULING ON OBJECTION NO. 4:

Dated:

matter other than this case. The witness has
not been shown to be unavailable.
Therefore the testimony is inadmissible
hearsay, offered without exception.

Further, Mr. Steele testified in his
deposition that he did not become a
journeyman in the union until 1972, so any
opinions that he may have about the union
or its members prior to 1972 are lacking in
foundation, speculative, irrelevant and
therefore inadmissible. (See defense
Exhibit 2 to Birkner Declaration, p. 19:1-3.)

Sustained:

Overruled:

5. Plaintiffs object to, and move to strike, the Declaration of Jeffrey Birkner,

Ph. D., paragraph 13 in its entirety.

Material Objected To:

5, Birkner Decl., paragraph 13, which
states as follows:

“In response to the request for documents,
Mr. Steele searched through his office,
filing cabinets and off-site storage for
responsive documents. Mr. Steele found
and produced at his deposition various
documents, inchiding eleven (11) editions
of The Asbestos Worker that he had located
in his office. These journals were
identified, marked, and attached to Mr.
Steele's deposition as Exhibits EE1 through.

Grounds for Objection:

5. The declaration lacks foundation, is
based upon speculation and hearsay, is
irrelevant and therefore inadmissible.
(Evid. Code §§ 210, 350, 403, 405, 702,
1200-1205.)

Mr. Steele’s deposition was taken ina
matter other than this case. The witness has
not been shown to be unavailable.
Therefore the testimony is inadmissible
hearsay, offered without exception.

Further, Mr. Steele testified in his
deposition that he did not become a
journeyman in the union until 1972, so any
opinions that he may have about the union
or its members prior to 1972 are lacking in
foundation, speculative, irrelevant and
therefore inadmissible. (See defense
Exhibit 2 to Birkner Declaration, p. 19:1-3.)

COURT’S RULING ON OBJECTION NO. 5:

Dated: Sustained:

Overruled:
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6. Plaintiffs object to, and move to strike, the Declaration of Jeffrey Birkner,

Ph. D., paragraph 14 in its entirety.

Material Objected To: Grounds for Objection:

6. Birkner Decl., paragraph 14, which 6. The declaration lacks foundation, is

states as follows: based upon speculation and hearsay, is
irrelevant and therefore inadmissible.

“During his deposition, Mr. Steele was (Evid. Code §§ 210, 350, 403, 405, 702,

shown and asked about (1 1) additional 1200-1205.)

issues of The Asbestos Worker that

preceded the ones he had produced, These Mr. Steele’s deposition was taken in a

earlier issues of The Asbestos Worker were matter other than this case. The witness has

marked and attached to Mr. Steele’s not been shown to be unavailable.

transcript as Exhibits F through P.” Therefore the testimony is inadmissible

hearsay, offered without exception.

Further, Mr. Steele testified in his
deposition that he did not become a
journeyman in the union until 1972, so any
opinions that he may have about the union
or its members prior to 1972 are lacking in
foundation, speculative, irrelevant and
therefore inadmissible. (See defense
Exhibit 2 to Birkner Declaration, p, 19:1-3.)

COURT’S RULING ON OBJECTION NO. 6:

Dated: Sustained:

Overruled:

7 Plaintiffs object to, and move to strike, the Declaration of Jeffrey Birkner,

Ph. D., paragraph 15 in its entirety, and attached exhibit.

Material Objected To: Grounds for Objection:

7. Birkner Decl., paragraph 15, which 7. The declaration lacks foundation, is

states as follows: based upon speculation and hearsay, is
irrelevant and therefore inadmissible.

“Mr. Steele consistently testified that these (Evid. Code §§ 210, 350, 403, 405, 702,

earlier editions of The Asbestos Worker 1200-1205.)

appear to have the same format as The

Asbestos Worker journals he had produced, Mr. Steele’s deposition was taken ina

and/or simply appear to be The Ashestos matter other than this case. The witness has

Worker journals (Deposition of Steve not been shown to be unavailable.

Steele, Vol. 1, 95:20-132:8 of Exhibit 2.)” Therefore the testimony is inadmissible

hearsay, offered without exception.

Further, Mr. Steele testified in his
deposition that he did not become a
journeyman in the union until 1972, so any

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COURT’S RULING ON OBJECTION NO. 7:
Dated:

opinions that he may have about the union
or its members prior to 1972 are lacking in
foundation, speculative, irrelevant and
therefore inadmissible. (See defense
Exhibit 2 to Birkner Declaration, p. 19:1-3.)

Sustained:

Overruled:

8. Plaintiffs object to, and move to strike, the Declaration of Jeffrey Birkner,

Ph. D., paragraph 16 in its entirety, and attached exhibit.

Material Objected To:

8, Birkner Decl., paragraph 16, which
states as follows:

“Tn my review of the April, 1957, issue of
The Asbestos Worker, attached hereto as
Exhibit 3 and incorporated by reference,
(p21) reporting on an annual meeting of the
Western States Conference, noted the
statement that, ‘The problem of asbestosis
and silicosis were discussed at large
stemming from the report of Local 16 in
which it was revealed that eleven of its
members passed away last year. A large
number of men had definite symptoms of
the aforementioned hazards of our trade.
Most of the locals in attendance spoke on
this vital subject... At this time a motion
was made, seconded and passed that the
international continue to investigate the
causes of Asbestosis and allied lung
ailments caused by fibrous materials and to
determine what measure can be found to
combat and prevent theses disease. [sic]’”

COURT’S RULING ON OBJECTION NO. 8:

Grounds for Objection:

8. The declaration lacks foundation, is
based upon speculation and hearsay, is
irrelevant and therefore inadmissible.
(Evid. Code §§ 210, 350, 403, 405, 702,
1200-1205.)

No foundation has been offered to show that
Birkner is capable of authenticating any
volumes of The Ashestos Worker journals,
let alone those at issue here. This statement
lacks foundation, is based upon speculation
and hearsay (Steve Steele’s deposition - see
objection No. 1 above), and is therefore
irrelevant and inadmissible.

Dated: Sustained:
Overruled:
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9 Plaintiffs object to, and move to strike, the Declaration of Jeffrey Birkner,

Ph. D., paragraph 17 in its entirety, and attached exhibit.
Grounds for Objection:

9, The declaration lacks foundation, is
based upon speculation and hearsay, is
irrelevant and therefore inadmissible.
(Evid. Code §§ 210, 350, 403, 405, 702,
1200-1205.)

Material Objected To:

9. Birkner Decl., paragraph 17, which
states as follows:

“Tn my review of the October, 1957, issue
of The Asbestos Worker, attached hereto as
Exhibit 4 and incorporated by reference,
(pl), the magazine contained the following
statement: ‘Health Hazards: Being well
aware of the health hazards in the Asbestos
Industry, President Sickles requested for the
General Executive Board to make a study of
the health hazards, with authority to appoint
sub-committees, and to employ the services
of such medial authorities, that will enable
the board to adopt any policies that will
tend to protect the health of our
International membership.”

COURT’S RULING ON OBJECTION NO. 9:

No foundation has been offered to show that
Birkner is capable of authenticating any
volumes of The Ashestos Worker journals,
let alone those at issue here. This statement
lacks foundation, is based upon speculation
and hearsay (Steve Steele’s deposition - see
objection No, 1 above), and is therefore
irrelevant and inadmissible.

Dated: Sustained:

Overruled:

10. Plaintiffs object to, and move to strike, the Declaration of Jeffrey Birkner,

Ph. D., paragraph 18 in its entirety, and attached exhibit.

Material Objected To:

10. Birkner Decl., paragraph 18, which
states as follows:

“In my review of the April, 1958, issue of
The Asbestos Worker, attached hereto as
Exhibit 5 and incorporated by reference,
(p22), the magazine reported, ‘The health
hazards of the trade were discussed an
Local No. 16 presented its case relative to
the vital ‘capacity test’ given through its
health and welfare program. .. The results
are very startling and should be the concern
of each member of our trade.””

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Grounds for Objection:

10. The declaration lacks foundation, is
based upon speculation and hearsay, ts
irrelevant and therefore inadmissible.
(Evid. Code §§ 210, 350, 403, 405, 702,
1200-1205.)

No foundation has been offered to show that
Birkner is capable of authenticating any
volumes of The Asbestos Worker journals,
let alone those at issue here. This statement
lacks foundation, is based upon speculation
and hearsay (Steve Steele’s deposition - see
objection No. 1 above), and is therefore
irrelevant and inadmissible.

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COURT’S RULING ON OBJECTION NO, 10:
Dated:

Sustained:

Overruled:

ik. Plaintiffs object to, and move to strike, the Declaration of Jeffrey Birkner,

Ph. D., paragraph 19 in its entirety, and attached exhibit.

Material Objected To:

11, Birkner Decl., paragraph 19, which
states as follows:

“Tn my review of the November, 1964, issue
of The Asbestos Worker, attached hereto as
Exhibit 6 and incorporated by reference,
(p5), reported on the findings from Dr.
Irwin Selikoff, who analyzed the results of a
number of studies or cancers in asbestos
workers: ‘In addition, an unexpectedly large
number of men died of cancer of the
stomach, colon or rectum (29 compared
with 9.4 expected). . .after reviewing the
problem and adding data of his own,
concluded that lung cancer was a specific
industrial hazard of heavily exposed.
asbestos workers.’”

Grounds for Objection:

11, The declaration lacks foundation, is
based upon speculation and hearsay, is
irrelevant and therefore inadmissible.
(Evid. Code §§ 210, 350, 403, 405, 702,
1200-1205.)

No foundation has been offered to show that
Birkner is capable of authenticating any
volumes of The Ashestos Worker journals,
let alone those at issue here. This statement
lacks foundation, is based upon speculation
and hearsay (Steve Steele’s deposition - see
objection No, 1 above), and is therefore
irrelevant and inadmissible.

COURT’S RULING ON OBJECTION NO, 11:

Dated: Sustained:

Overruled:

12. Plaintiffs object to, and move to strike, Exhibits 3-6 to the Declaration of

Jeffrey Birkner, Ph. D..

Material Objected To: Grounds for Objection:

12. Birkner Decl., Exhibits 3-6 12. Exhibits 3-6 are purportedly copies of
The Asbestos Worker journals. However,
the documents have not been properly
authenticated, and are therefore
inadmissible hearsay. (Evid. Code §§ 210,
350, 403, 405, 702, 1200-1205.)

No foundation has been offered to show that
Birkner is capable of authenticating any
volumes of The Asbestos Worker journals,
let alone those at issue here.

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COURT’S RULING ON OBJECTION NO. #2:

Dated:

Sustained:

Overruled:

13. Plaintiffs object to, and move to strike, the Declaration of Jeffrey Birkner,

Ph. D., paragraph 23.

Material Objected To:

13, Birkner Decl., paragraph 23, which
states as follows:

“Based on my review of these issues of The
Asbestos Worker, as well as the depositions
of Merle Steele and Steve Steele, I opine
that The Asbestos Worker quarterly journal
distributed by the International Association
of Heat & Frost Insulators and Asbestos
Workers who, in turn, apparently provided
it to local unions, including Local 16, and
distributed to its members. It is also my
opinion that The Asbestos Worker had been
reporting on the potential health hazards of
asbestos as early as 1957 and continuing
through 1964, at least.”

Grounds for Objection:

13, The declaration lacks foundation, is
based upon speculation and hearsay, is
irrelevant and therefore inadmissible.
(Evid. Code §§ 210, 350, 403, 405, 702,
1200-1205.)

No foundation has been offered to show that
Birkner is capable of authenticating any
volumes of The Ashestos Worker journals,
let alone those at issue here. This statement
lacks foundation, is based upon speculation
and hearsay (Steve Steele’s deposition - see
objection No, 1 above), and is therefore
irrelevant and inadmissible.

COURT’S RULING ON OBJECTION NO, 13:

Dated: Sustained:
Overruled:
Dated: _ 04/25/13 BRAYTON*#PURCELL LLP
By: /s/ Jamie A. Newbold
Jamie A. Newbold
Attorneys for Plaintiffs
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