Motion-Secondary: ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS

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                                1 | Howard P. Skebe, Esq. (State Bar No. 191407) ELECTRONICALLY

Lindsay Weiss, Esq. (State Bar No. 268076) FILED
2 | COOLEY MANION JONES LLP . a
201 Spear Street, 18th Floor Superior Court of Calffon nla,
3 | San Francisco, CA 94105 ounty of San Francisco
Tel: (415) 512-4381 MAY 03 2013
4] Fax: (415) 512-6791 Clerk of the Court
Email: hskebe@emjlaw.com BY: EDNALEEN JAVIER
5 | Email: lweiss@ecmjlaw.com Deputy Clark
6 || Attorneys for Defendant
TEMPORARY PLANT CLEANERS, INC.
7
8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF SAN FRANCISCO
10 | ROBERT ROSS and JEAN ROSS, Case No, CGC-10-275731
M ntif DEFENDANT TEMPORARY PLANT
D Plaintiffs, CLEANERS, INC.’S REPLY
MEMORANDUM IN SUPPORT OF
B v. MOTION FOR SUMMARY JUDGMENT
14 C.C. MOORE & CO, ENGINEERS; Date: May 9, 2013
Defendants as Reflected on Exhibit | attached ome sor am,
to the Si Ce laint; and; DOES 1- pt.
15 $500, jummary Complaints ane’; Judge: Hon, Teri L. Jackson
16 Case Filed: December 17, 2010
7 Defendants. Trial Date: June 10, 2013
ig |] L INTRODUCTION
19 In their Opposition, Plaintiffs ignore TPC’s argument that there is no evidence in this case

20 | that TPC knew, or should have known, the content of the products it allegedly disturbed in the
21 | Plaintiff's presence. Plaintiffs’ Opposition makes bold statements regarding TPC’s alleged duty
22 | to the Plaintiff; however, Plaintiffs again fail to support these assertions with any admissible

23 | evidence. Furthermore, Plaintiffs rely on speculative testimony of Plaintiff Robert Ross, in order
24 | to prove that TPC worked with asbestos-containing insulation in the Plaintiff's presence.

25 | Accordingly, and for the reasons set forth below, summary judgment is proper.

26 | UL. SUMMARY OF FACTS IN BRIEF

27 Plaintiffs Robert Ross and Jean Ross (“Plaintiffs”) claim that Robert Ross’ alleged

28 | asbestos exposure caused him to contract colon cancer, and filed this personal injury and loss of
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DEFENDANT TEMPORARY PLANT CLEANERS, INC.’S REPLY MEMORANDUM IN SUPPORT OF
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consortium action on December 17, 2010. Plaintiffs allege bystander exposure to asbestos from
work performed by TPC (formerly known as Plant Maintenance, Inc. of California). Plaintiffs do
not allege that TPC manufactured, supplied or distributed products.

TPC served comprehensive “all facts” discovery on Plaintiffs, asking for, inter alia, all
facts supporting Plaintiffs’ claims against TPC. On February 21, 2013, TPC moved for summary
judgment on the grounds that TPC owed no duty to the Plaintiff and highlighted the lack of
evidence in this regard. In addition to emphasizing that TPC owed no duty to the Plaintiff, and
therefore, cannot be held liable on any negligence theory, TPC’s motion also argued that
Plaintiffs lacked evidence indicating that Plaintiff was exposed to asbestos as a result of any TPC
activity. TPC supported its motion for summary judgment with sworn deposition testimony and
Plaintiffs’ factually devoid responses to TPC’s case-specific discovery.

Plaintiffs filed their Opposition to TPC’s summary judgment motion on April 25, 2013.
Plaintiffs attached no evidence whatsoever to their Opposition to support Plaintiffs’ contention.
that TPC owed Plaintiff Robert Ross a duty. In their Opposition, Plaintiffs refer to the California
Safety Orders cited in their responses to TPC’s special interrogatories, however, there is no
indication that any such regulations applied to TPC, a company that did not contract with, or
employ the Plaintiff. Further, Plaintiffs attest that their responses to discovery are not “factually
devoid,” however, Plaintiffs’ responses do nothing more than make allegations without any
evidentiary support whatsoever. Merely citing to a litany of documents ~ such as articles
regarding insulation and regulations — certainly does not prove that any such articles were
available to TPC, or, more importantly, that TPC was required to review and abide by them.
Plaintiffs responses to discovery do nothing more than assert that TPC “should have” taken
certain precautions — however, as noted in TPC’s moving papers, there is no evidence in this case
that TPC was under any legal obligation to do so or that TPC, as a mere contractor under the
direction, control and supervision of the subject refineries even “could have” done anything
beyond what their assigned task was at any subject refinery, Plaintiffs’ responses make legal
conclusions on the issue of duty, but are devoid of anything proving that TPC had control over

the workplace, knew of the content of the products it disturbed, or could have taken any
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precautions, even had TPC perceived a need to do so.

The only evidence attached to Plaintiffs’ Opposition is a series of excerpts from the
deposition of Robert Ross, which merely recites Plaintiffs’ allegations that TPC worked with
insulation in his presence, Plaintiffs conveniently refer the Court to testimony where Plaintiff
states he recalls TPC employees working with insulation in his presence, however, ignores the
testimony where he affirmatively states that he does not know the brand name or manufacturer of
any of the insulation. Most importantly, where Plaintiffs attempt to “lay the foundation” for
Plaintiff's belief that the insulation contained asbestos, Plaintiffs ignore the fact that the testimony
regarding the insulation Plaintiff believed contained asbestos pertained to insulation another
contractor, not TPC, was handling.

1. ARGUMENT

A, PLAINTIFFS’ ARGUMENT THAT TPC FAILED TO SHIFT ITS INITIAL
BURDEN OF PROOF HAS NO MERIT

In their Opposition, Plaintiffs assert that TPC failed to meet its burden on summary
judgment. Plaintiffs’ argument misconstrues the summary judgment standard, To meet its initial
burden, a defendant need not affirmatively negate all elements of a Plaintiff's cause of action, but
need only make a prima facie showing that the Plaintiffs do not have, and cannot reasonably
obtain, evidence supporting at least one element of their claim. Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 845. A defendant may meet this burden by attaching Plaintiff's own
deposition testimony or factually devoid responses to case-specific discovery, so long as they
raise a reasonable inference that Plaintiffs lack evidence supporting an element of their claim.
Andrews v. Foster Wheeler (2006) 138 Cal.App.Ath 96, 104; McGonnell v. Kaiser Gypsum
Company, Inc, (2002) 98 Cal.App.4th 1098, 1104, “A moving defendant may rely on factually
devoid discovery responses to shift the burden of proof pursuant to section 437¢, subdivision
(0)(2). Once the burden shifts as a result of the factually devoid discovery responses, the plaintiff
must set forth the specific facts which prove the existence of a triable issue of material fact.”
Union Bank vy. Superior Court (1995) 31 Cal.App.4th 573, 589.

Here, TPC presented the following evidence with its moving papers: (1) Plaintiff's own

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DEFENDANT TEMPORARY PLANT CLEANERS, INC.’S REPLY MEMORANDUM IN SUPPORT OF
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deposition testimony, which limits Plaintiff's alleged work with or around TPC to two job sites,
where Plaintiff identified TPC as a contractor who performed clean-up work and work with an
unknown brand of insulation; and (2) Plaintiffs’ responses to TPC case-specific interrogatories,
which do nothing more than make boilerplate accusations against TPC and provide no admissible
evidence on the issue of duty. These two pieces of evidence were, and are, more than sufficient
to meet TPC’s initial burden on summary judgment, and clearly indicate that Plaintiffs did not
(and still do not) have the requisite evidence to prove causation or establish that a legal duty

existed.
1. Plaintiffs’ Discovery Responses Refer to Documents Which Have no
Bearing on TPC

As to the issue on whether a duty existed, Plaintiffs contend that their responses to TPC’s
case-specific discovery are not factually devoid, and are sufficient to prove that TPC knew, or
should have known, of the hazards of asbestos during the relevant time periods, and that TPC
should have, and could have, taken precautions to protect the Plaintiff from any such hazardous
material. Such attenuated extrapolations and foundationless conclusory statements do not breathe

the requisite substance into otherwise deficient responses:

“The defendant may, but need not, present evidence that conclusively negates an

element of the plaintiff's cause of action. The defendant may also present

evidence that the plaintiff does not possess, and cannot reasonably obtain,

needed evidence-as through admissions by the plaintiff following extensive

discovery to the effect that he has discovered nothing.” Aguilar v. Atlantic

Richfield Co, (2001) 25 Cal.4th 826, 855 (emphasis added).

Here, TPC has served specific, detailed discovery, seeking Plaintiffs’ evidence regarding
TPC’s alleged duty, and Plaintiffs did nothing more than cite to “California Industrial Safety
Orders” and “Insulation” documents, without specifying whether, or how, these documents were
applicable to TPC. (Exhibit G to the Weiss Decl.) In fact, as to the California Industrial Safety
Orders, Plaintiffs’ responses state that the Orders “apply to all employers” (/d. at 8:26-27; 17:5-
6), and that the Orders mandate employees to “wear respiratory equipment” (/d. at 9:2-3) and
employers to “provide a change room, shower baths, and lavatories. . .” (/d. at 9:3-5). TPC is not

alleged to have employed the Plaintiff in this case, thus, these Orders that are referenced do not

apply to TPC. Plaintiffs’ “Insulation” documents merely cite to articles written during certain

years, but do not specify how they were available to TPC during the relevant timeframe, or,
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again, whether TPC could have taken precautions, even had it known of the hazards of asbestos,
Even assuming, arguendo, that these Safety Orders did apply to TPC during the requisite time
period, there is no affirmative evidence proffered by Plaintiffs that TPC violated any of these
Orders in any fashion.

Plaintiffs’ responses are factually devoid, They do nothing more than make allegations
that TPC should have, could have, and ought to have done something, but lack any supporting
evidence that anything Plaintiffs would have liked TPC to have done was ever possible or, as an
independent ground, that TPC had any legal obligation to do so. TPC has shifted the burden of

proof, and for the reasons stated below, summary judgment is proper.

B. PLAINTIFFS FAIL TO CONTRADICT TPC’S ASSERTION THAT TPC
OWED NO DUTY TO PLAINTIFF ROBERT ROSS

Plaintiffs’ entire argument in Opposition to TPC’s assertion that it had no duty to Plaintiff,
and therefore, cannot be held liable on any negligence or contractor liability theory, is misguided.
Plaintiffs rely upon unsubstantiated bald assertions regarding TPC’s alleged knowledge during
the relevant time periods; however, Plaintiffs do not provide one scintilla of evidence to support
its assertions. In support of their argument, Plaintiffs contend that all persons owe each other a
duty of ordinary care, citing Rowland v. Christian (1968) 69 Cal.2d 108 (Plaintiff's Opposition,

p. 7:14-19). However, Plaintiffs ignore the fact that Rowland specifically sets forth that:

“departure from this general principal involves the balancing of a number of
considerations: the major ones are the foresceability of harm to the plaintiff, the
degree of certainty that the plaintiff suffered injury, the closeness of the connection
between the defendant's conduct and the injury suffered, the moral blame attached.
to the defendant's conduct, the policy of preventing future harm, the extent of the
burden to the defendant and consequences to the community of imposing a duty to
exercise care with resulting liability for breach, and the availability, cost, and
prevalence of insurance for the risk involved,” Rowland v. Christian (1968) 69
Cal.2d 108, 112-13.

While Plaintiffs later argue that the evidence supports a duty under the general factors
articulated in Rowland, Plaintiffs’ advancement of the unqualified notion that all persons must
ordinary care for each other is purposely misleading. As for Plaintiffs’ bald assertion that the
balancing of the Rowland factors establishes that TPC owed a duty, respectfully, TPC disagrees.

First, without a showing that TPC knew or should have known that the materials it

allegedly disturbed in Plaintiff's presence contained asbestos, the specific harm Plaintiff alleges
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here — colon cancer — was not foreseeable. Plaintiffs have offered no competent evidence on this
point. In fact, beyond pure conjecture, there is no evidence in this case that the products TPC
worked with even contained asbestos.

Second, there is no degree of certainty supporting Plaintiff's claim of injury from any of
TPC’s activities, Not only is the cause of injury (colon cancer from asbestos exposure) in
question, but TPC’s contributing role is also highly suspect given the speculative nature of
Plaintiffs’ evidence regarding the asbestos content of the materials at issue, and the number of
other asbestos exposures Plaintiffs claim contributed to Plaintiff's injury.

Third, there is no evidence showing a nexus between TPC’s conduct and the harm alleged
for the simple reason that there is no evidence that the cleaning of alleged products in Plaintiff's
presence, of which the content is unknown, would in any way be causative of any disease.

Furthermore, Plaintiffs reference the existence of “California Safety Orders” and sets forth
that, because of those regulations, TPC should have known to minimize dust created from work it
was performing. However, there is no admissible evidence in this case showing that TPC knew
the content of the products it was allegedly working with, let alone, evidence related to the level
of dust allegedly generated by TPC. There are no “California Safety Orders” attached as evidence
in support of this attenuated supposition, and even were such orders attached, their admissibility
would be questionable at best. More to the point, Plaintiffs provide no evidence that: i) TPC knew
or should have known of these orders, ii) whether said regulations applied to TPC or the
circumstances of this case, or, iii) whether, in fact, any such order was violated and, if so, in what
manner. The plain language of the Orders does not extend or contemplate any onus upon an entity
such as TPC. These Orders dictate how an employer was to act; not a contractor, who, under the
facts of this case, was in many ways equal, or subservient to, Plaintiff himself. As a purely
procedural and analytical proposition, the Court should reject such unsubstantiated musings
within the context of opposing summary judgment.

Assuming arguendo, the California Safety Orders applied to TPC, a proposition which
TPC unequivocally disputes, there is no evidence in this case that hazardous dust was ever

created by TPC, let alone, any particular level of dust ever exceeded (or was even measured) the
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standard allowable. Plaintiffs have presented no evidence that any work performed by TPC in
Plaintiff's presence exceeded the dust counts acceptable under the Orders. In Plaintiffs’
responses to TPC’s special interrogatories where the Safety Orders are referenced, (Exhibit G to
the Weiss Decl. at 9:7-8), Plaintiffs cite to “work that generated quantities of dust...” There is
no evidence in this case as to what such “quantities” were allowable and what such “quantities”
were generated by TPC’s work, ifany. Accordingly, even if these Orders applied to TPC, there is
no evidence in this case that TPC did anything, or failed to do anything, in violation of such
Orders.

Accordingly, Plaintiffs have not one iota of evidence that TPC knew or should have
known that the products they allegedly worked with were asbestos-containing, and no evidence
whatsoever that TPC owed a duty to the Plaintiff. TPC owed Plaintiff no duty of care and as

such, TPC’s summary judgment should be granted.

1. PLAINTIFFS’ ASSERTION THAT CAMPBELL’S FACTS ARE
DISTINGUISHABLE IGNORES TPC’S ARGUMENT

Plaintiffs’ Opposition focuses on the facts of Campbell v. Ford Motor Co, in order to
establish the distinctive particularities of that case with the instant matter. However, TPC directly
asserts in its moving papers that “[w]hile Campbell's fact pattern has some distinguishing features
to the case at hand, the Court’s holding is applicable.” (TPC’s Motion for Summary Judgment, p.
7:16-17). TPC is not asserting that the facts of Campbell are the same as the matter at issue:
however, TPC does contend that the holding is pertinent,

Campbell addresses the issue of whether a premises owner owed a duty to a family
member of an employee who worked on the defendant’s premises. Campbell v. Ford Motor Co.
(2012) Cal. App.4th 15. The Court, in deciding whether or not to impose a duty, examined the
Rowland factors in a consistent manner with the analysis advanced by TPC in its moving papers.
Id. at 34. In analyzing whether a duty exists, the Court should conduct 4 balancing test balance of
the Rowland factors to make the ultimate determination. The general notion that we all owe a
duty to one another, as Plaintiffs assert, is a convenient and purposeful mischaracterization of the
law, and would saddle TPC “with a burden of uncertain but potentially very large scope” similar

to that disapproved by the Campbell Court. /d. at 33.
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DEFENDANT TEMPORARY PLANT CLEANERS, INC.’S REPLY MEMORANDUM IN SUPPORT OF
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2. THE ROWLAND FACTORS WEIGH HEAVILY IN TPC’S FAVOR

TPC’s moving papers focus on the Rowland factors, and the fact that a balancing of those
factors weighs heavily in TPC’s favor, thereby establishing that no duty can, or should, be
imposed on TPC in this matter. Rowland v. Christian (1968) 69 Cal.2d 108. Plaintiffs too address
the Rowland factors, however, they provide zero evidence in support of any of the assertions
made. For the reasons set forth below, Plaintiffs’ analysis of the Rowland factors is flawed:

a) Foresceability of Harm

As stated above, there is no evidence whatsoever in this case, not even an iota cited in
Plaintiffs’ Opposition, that TPC knew or should have known that any materials it allegedly
worked with in the Plaintiff's presence contained asbestos. Without evidence that TPC knew or
should have known the content of the debris (and insulation) with which it allegedly worked, it
was inno way foreseeable to TPC that the Plaintiff could have suffered any injury from their
work. This factor clearly weighs heavily in TPC’s favor, and pursuant to Martinez, is crucial to
support a finding that TPC owed no duty to the Plaintiff. Oddone v. Superior Court (2009) 179
Cal.App.4th 813; Martinez v. Bank of America (2000) 82 Cal.App.4th 883; Rowland supra.

b) Degree of Certainty that Decedent Suffered Injur

Again, Plaintiffs provide no evidence that any work performed by TPC resulted in an
injury to the Plaintiff. There is no evidence in this case, beyond pure conjecture by lay witnesses,
that TPC even worked with asbestos-containing products. Without evidence supporting this
claim, Plaintiffs’ bald assertion must be rejected. Accordingly, this factor too weighs heavily in
TPC’s favor.

c) Moral Blame Attached to TPC’s Conduct

There is no evidence showing a nexus between TPC’s conduct and the harm alleged for
the simple reason there is no evidence in this case that TPC had any control over Plaintiff's work-
place activities, TPC was not Plaintiff's employer. There is no evidence that TPC was responsible
for Plaintiff's workplace safety conditions. TPC had no control over whether Plaintiff wore a
mask or took other precautions to protect himself from airborne dust, let alone airborne asbestos

dust. For many of the same reasons, little to no moral blame can be attached to TPC’s activities as
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there is no evidence in this case that TPC acted intentionally or in a reckless manner at all.

d) Extent of Burden to TPC of Imposing a Duty

California courts address the issue of the effect of imposing such an over-reaching duty on
certain defendants. Rowland, supra, 69 Cal.2d 108; Davis, supra, 205 Cal.App.4th 731,
Campbell, supra, 206 Cal. App.4th at 33. Here, Plaintiffs are attempting to impose a duty by
asserting that a general maintenance contractor, who was hired to work alongside the Plaintiff,
should have taken measures to protect the Plaintiff at their shared workplace. Despite the fact
that there is no evidence in this case whatsoever showing that TPC had responsibility or
maintained control over the workplace, and thus, could have taken any precautions, insposing a
duty on a contractor who is essentially a co-worker of the Plaintiff, would saddle TPC with

potentially boundless liability. The Campbell Court addressed this precise issue and held:
The gist of the matter is that imposing a duty toward non-employee persons
saddles the defendant employer with a burden of uncertain but potentially very
large scope. One of the consequences to the community of such an extension is
the cost of insuring against liability of unknown but potentially massive
dimension. Ultimately, such costs are borne by the consumer. In. short, the burden
on the defendant is substantial and the costs to the community may be
considerable, Campbell, supra, 206 Cal.App4th at 33.

In determining whether a duty exists, “[floreseeability and extent of burden. to the
defendant... have evolved to become the primary [Rowland] factors.” Jd. at 33 (emphasis

added). As both of these factors weigh heavily in TPC’s favor, no duty should be imposed.

C, IF THE COURT FINDS THAT TPC OWED PLAINTIFF A DUTY, TPC
SHOULD STILL PREVAIL ON SUMMARY JUDGMENT

As outlined in TPC’s moving papers, Plaintiffs cannot establish causation and thus, TPC
should prevail on summary judgment. Despite the numerous overstatements in Plaintiffs’
Opposition proclaiming that the insulation TPC allegedly worked with contained asbestos, at best,

Plaintiff's deposition testimony (the only evidence Plaintiffs offer to prove their case against

TPC) merely establishes: 1) that Plaintiff worked in the presence of TPC employees at two
locations, 2) at these locations TPC performed clean-up work and work with insulation, and 3)
Plaintiff admitted he did not know the brand name or manufacturer of the insulation, nor the year
it was first installed. As discussed below, Plaintiff has no foundation to opine as to the

composition of this insulation and to the extent he attempted to do so, it was within the context of
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insulation other contractors allegedly worked with; not TPC.

Furthermore, the testimony that Plaintiffs point to as their “evidence” is weak. Plaintiffs
direct the Court to an excerpt where Plaintiff believed he saw TPC employees working with
insulation, which he described as “white and gray”, albeit, admitting he did not know the brand
name or manufacturer, or the year the insulation was first installed. (Exhibit A to the Declaration
of Ashley Benson, 427:2-14). Even more irrational, in an attempt to make Plaintiff an “expert”
on the content of the insulation he saw, Plaintiffs point the Court to testimony that does not
pertain to TPC at all, but to another contractor instead. /d. at 417:6-418:1.

Setting aside the numerous issues with how Plaintiff arrived at his conclusion that TPC
worked with asbestos-containing insulation, the conclusion itself does not lend itself to creating a
triable issue of fact. This “evidence” only creates “a dwindling steam of probabilities that narrow
into conjecture.” McGonnell v. Kaiser Gypsum Co., Inc. (2002) 98 Cal.App.4" 1098, 1105. These
facts, even considered in a light most favorable to Plaintiffs, do not create a triable issue of
material fact. They are similar to the facts in McGonnell, where the court stated, “all that exists in
this case is speculation that at some time [plaintiff] might have cut into a wall that might have
contained Kaiser joint compound that might have contained asbestos.” At best, all Plaintiffs have
established is that at some point, TPC may have worked with insulation in Plaintiff's presence
and that this unknown brand of insulation, installed at some unknown time may have contained.
asbestos. The law is clear. Such conjecture and speculation cannot create a triable issue of fact.

Accordingly, the Court should grant TPC’s motion for summary judgment.

IV. CONCLUSION

Plaintiffs have failed to create a triable issue of fact as to the issue of whether a duty

existed, and on the issue of causation. Accordingly, for the reasons set forth above, TPC

respectfully requests that the Court enter summary judgment in its favor.
DATED: May 3, 2013 COOLEY MANION JONES LLP

ae

Lindsay Weiss, Esq.
Attorneys for Defendant,
TEMPORARY PLANT CLEANERS, INC.

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DEFENDANT TEMPORARY PLANT CLEANERS, INC.’S REPLY MEMORANDUM IN SUPPORT OF
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Robert Ross, et al. v. C.C. Moore & Co. Engineers, et al.
San Francisco Superior Court No. CGC-10-275731

PROOF OF SERVICE BY LEXIS-NEXIS E-SERVICE

lam a citizen of the United States and employed in San Francisco County, California. [
am over the age of eighteen years and not a party to the within-entitled action. My business
address is 201 Spear Street, 18" Floor, San Francisco, CA 941085.

On May 3, 2013, I electronically served the following document(s) via LexisNexis File
and Serve on all parties listed on the transmission report:

DEFENDANT TEMPORARY PLANT CLEANERS, INC.’S REPLY
MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

I declare under penalty of perjury under the laws of the State of California that the above
is true and correct.

Executed on May 3, 2013, at San Francisco, California.

Qo pe FP

JEFFREY FOOTE

i

DEFENDANT TEMPORARY PLANT CLEANERS, INC.’S REPLY MEMORANDUM IN SUPPORT OF
ITS MOTION FOR SUMMARY JUDGMENT