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  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview 
						
                                
Preview

                                1 || Edward R. Hugo [Bar No. 124839]
P.M. Bessette [Bar No. 127588]
21) Josette D. Johnson [Bar No. 195977]

BRYDON HUGO & PARKER ELECTRONICALLY
3 || 135 Main Street, 20th Floor FILED
San Francisco, CA 94105 Superior Court of California,
41| Telephone: (415) 808-0300 County of San Francisco
Facsimile: (415) 808-0333 MAY 03 2013
5 || Email: service@bhplaw.com Clerk of the Court
6 || Attorneys for Defendant BY ane seuty Clerk
ROUNTREE PLUMBING & HEATING, INC.
7
8
SUPERIOR COURT - STATE OF CALIFORNIA
9
COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION
0
1
ROBERT ROSS and JEAN ROSS, (ASBESTOS)
2 Case No. CGC-09-275731
Plaintiffs,
3 VS. REPLY TO PLAINTIFFS’ OPPOSITION TO

ROUNTREE PLUMBING & HEATING,
41) C.C. MOORE & CO. ENGINEERS, et al., | INC.’S MOTION FOR SUMMARY
JUDGMENT, OR IN THE ALTERNATIVE,

5 Defendants. SUMMARY ADJUDICATION
6
Date: May 9, 2013
7 Time: 9:30 a.m.
Dept: 503
8 Judge: Hon. Teri L. Jackson
9 Complaint Filed: | December 17, 2010
Trial Date: June 10, 2013
20
21 Rountree Plumbing & Heating, Inc. (“Rountree”) hereby submits its reply to

22 || plaintiffs’ opposition to Rountree’s motion for summary judgment.

23 In opposition to Rountree’s motion for summary judgment, plaintiff claims that
24 |) Johnson v. American Standard (2008) 43 Cal.4* 56, does not apply to a negligence cause of
25 || action, but even if it did, Rountree has not shown plaintiff's individual sophistication

26 || regarding asbestos, such that Johnson should not apply. Neither argument is correct.

27 || Under Johnson, Rountree is not required to show plaintiff’s individual, subjective level of
28 || sophistication. Rather, Rountree need only show the subjective sophistication of the

BRYDON
Huco & PARKER 1

eho REPLY TO PLAINTIFFS’ OPPOSITION TO ROUNTREE PLUMBING & HEATING, INC.’S MOTION FOR
Ser Francisco, CA 9415 SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATIONmembers of plaintiff's trade - asbestos workers. Moreover, Johnson explicitly states that

2 || it applies to negligence causes of action.

3 A. As A Sophisticated User of Asbestos, Rountree Did Not Owe Duty Of Care
4 To Robert Ross.

5 Plaintiffs argue that Rountree has failed to show that Robert Ross was a

6 || sophisticated user of asbestos. This argument ignores the testimony of Robert Ross

7 || wherein he admitted to being a member of Asbestos Workers Local 16, to attending

8 || union meetings, to receiving the Asbestos Workers magazine, and to wearing a mask

9 || throughout his career. Regardless, it is beyond dispute that in Johnson, the Supreme
0 || Court adopted an objective standard in determining whether the plaintiff possessed
1 |] sufficient knowledge to qualify as a “sophisticated user.” (Johnson v. American Standard,
2 |) Inc. (2008) 43 Cal.4* 56, 71.) Thus, it is not the knowledge of the individual that matters,

3 || but rather the knowledge of the trade or group to which the individual belongs that

4 || determines the application of the sophisticated user defense. The focus of inquiry is

5 || “whether the danger in question was so generally known within the trade or profession.
6 || that a manufacturer should not have been expected to provide a warning specific to the
7 {| group to which [the plaintiff] belonged.” (Johnson, supra, 43 Cal.4" at 74.) Here, there is

8 || no doubt that Robert Ross himself, and the union to which he belonged, Local 16, were

9 || sophisticated users of asbestos who were fully aware of the dangers of exposure to

20 || asbestos.

21 B. As A Sophisticated User of Asbestos, Rountree Did Not Owe Duty Of Care
To Robert Ross.

22

23 Plaintiffs contend that even if the sophisticated user defense applies, it is limited

24 |) to the strict liability/failure to warn cause of action, which they have agreed to

25 || dismissed. Put another way, they argue that Johnson should apply only to

26 |) manufacturers of products, and not contractors. Plaintiffs are wrong. A fundamental
27 |) element of any cause of action for negligence is the existence of a legal duty of care

28 |) running from the defendant to the plaintiff. The existence and scope of any such legal

BRYDON
HuGo & PARKER 2
eho REPLY TO PLAINTIFFS’ OPPOSITION TO ROUNTREE PLUMBING & HEATING, INC.’S MOTION FOR

Ser Francisco, CA 9415 SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATIONduty are legal questions for the court. “’[D]uty’ is not an immutable fact of nature but

2 |) only an expression of the sum total of those considerations of policy which lead the law to
3 || say that the particular plaintiff is entitled to protection.” (Campbell v. Ford Metor

4 || Company (2012) 206 Cal.App.4 15, 26 [emphasis in original].)

5 The Johnson court explained that it is the policy of California that, "[I]ndividuals

6 || who represent that they are trained or are members of a sophisticated group of users are
7 || saying to the world that they possess the level of knowledge and skill associated with

8 || that class." (Johnson, supra, 43 Cal.4" at 71.) Thus, anyone in the “world” should be

9 || absolved from providing a warning to a member of the sophisticated group. Otherwise,
0 || under plaintiff's theory, the product's designer and manufacturer, which incorporated

1 || the asbestos, has no duty to warn, while the law would impose such a duty on a person
2 || performing a service by installing controls. Under Johnson, such is not the law. The

3 || member of the sophisticated group, i.e., plaintiff - is deemed to have the same

4 || knowledge in both situations, whether it be with respect to a product manufacturer or
5 || with respect to a company like Rountree installing piping for plumbing. It is the actual
6 || or constructive knowledge of the plaintiff that is determinative, not the relation of the

7 || defendant to the plaintiff.

8 Said another way, under Johnson it is the knowledge of the sophisticated user

9 || group or trade that extinguishes any duty from a defendant to any member of the

20 |) sophisticated user group, the rationale being that each member is deemed to have all the
21 |) knowledge attributable to the group. To wit, whether plaintiff is working with an

22 || asbestos-containing product from a manufacturer or working in proximity to work by
23 || Rountree, he is deemed to have the same knowledge in both situations. The effect of that
24 | knowledge, i.e., there being no duty to warn, should not be affected by the actions or

25 |) status of the individual defendant. To say otherwise is to impose different duties on

26 || different defendants irrespective of the fact that plaintiffs knowledge is the same in all

27 || situations, which would only produce an unjust result.

28 In essence, plaintiffs argue that Rountree employees should not have been doing
BRYDON
HuGo & PARKER 3
nee REPLY TO PLAINTIFFS’ OPPOSITION TO ROUNTREE PLUMBING & HEATING, INC.’S MOTION FOR

Ser Francisco, CA 9415 SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION2 || on its face. Rountree was not responsible for bringing any fireproofing or insulation to
3 || the job. That was the responsibility of plaintiffs employer. Plaintiff worked with

4 || asbestos on a daily basis, exposing himself to asbestos regardless of any action of

5 || Rountree. Nothing that Rountree could have said or done would have altered the fact
6 || that plaintiff's own job put him into daily contact with asbestos on the job sites. Thus,
7 || plaintiff assumed the particular inherent risk of working with asbestos in his job as an
8 || insulator, a risk of which he was well aware, and Rountree owed him no duty of care.

1 || the job they were contracted to do, which was install piping. This argument is absurd

9 |) (See Knight v. Jewett (1992) 3 Cal.4® 296, 314-315 [By virtue of the nature of the activity

0 || and the parties’ relationship to the activity, the defendant owes no legal duty to protect

1 || the plaintiff from the inherent risk of harm that caused the injury.]; Herrle v. Estate of

2 || Marshall (1996) 45 Cal.App.4* 1761 [senile patient in hospital owed no duty of care to

3 || nurse, who by the very nature of nurse’s chosen profession, assumed the danger of

4 || violence by her patients].)

5 Accordingly, this Court should not be persuaded by any contention by plaintiff :

6 || that Johnson applies only to strict liability causes of action against manufacturers of |
|
i

7 || products. Based on the forgoing, Rountree requests summary judgment be granted.

8
9 || Dated: May 3, 2013 BRYDON HUGO & PARKER
20
21 By: _/s/ Josette D. Johnson
Josette D. Johnson
22 Attorneys for Defendant
ROUNTREE PLUMBING & HEATING,
2B INC.
24
25
26
27
28
BRYDON
Huco & Parker 4
bo REPLY TO PLAINTIFFS’ OPPOSITION TO ROUNTREE PLUMBING & HEATING, INC.’S MOTION FOR

Ser Francisco, CA 9415 SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATIONSew NAH BR WY

RN NR NR RR me ms te
RBNRRRE RSE SSR AFG EBH SE

Ross, Robert & Jean
San Francisco County Superior Court Case No. CGC-10-275731

File & ServeXpress Transaction No. 52114773
PROOF OF SERVICE

Tam a resident of the State of California, over the age of 18 years, and not a
party to the within action. My electronic notification address is
servicesbhplaw.com and my business address is 135 Main Street, 20% Ploor, San
Francisco, California 94105. On the date below, I served the following:

REPLY TO PLAINTIFFS’ OPPOSITION TO ROUNTREE PLUMBING &
HEATING, INC.’S MOTION FOR SUMMARY JUDGMENT, OR IN THE
ALTERNATIVE, SUMMARY ADJUDICATION

on the following:

BRAYTON PURCELL LLP File & ServeXpress Electronic Service
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Fax: (415) 898-1247

X By transmitting electronically the document(s) listed above as set forth
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firm’s ordinary business practices. ] am readily familiar with the firm’s
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Executed on May 3, 2013, at San Francisco, California.

Wanda D. Claudio

PROOF OF SERVICE