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

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                                HAAS & NAJARIAN, LLP.

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Attomeys for Defendant
MCCLURE ELECTRIC, INC.

ROBERT ROSS and JEAN ROSS,

* Plaintiffs,

Cc C. MOORE & co. ENGINEERS;

‘|| attached to the Summary Complaint
herein; and DOES 1-8500. :

Defendants,

PATRICIA G. ROSENBERG, SBN 154820

‘Defendants as Reflected on Exhibit) =

: ~ SUPERIOR COURT OF THE STATE OF CALIFORNIA -
cry AND COUNTY OF SAN. FRANCISCO UNLIMITED JURISDICTION

: Com; aint Filed: December 17, 2010

: ELECTRONICALI yo S
FILED ~

- Superior Court of Califo fas
‘County of San Francis¢o: +:
MAY 02 2018 -
Clerk of the Court:
BY: EDNALEEN JAVIER 2°

: : ~ Deputy jerk: oes

Case No. cGc- 10 275731

: DEFENDANT. ‘MCCLURE ELECTRIC,
—INC.?S RESPONSE TO PLAINTIFFS’
SEPARATE STATEMENT OF. :

DISPUTED MATERIAL FACTS IN. .

‘OPPOSITION TO DEFENDANT =~
“MCCLURE ELECTRIC, INCOS MOTION
FOR SUMMARY JUDGMENT OR, INC
‘THE ALTERNATIVE, SUMMARY

ADJUDICATION -

: Hon. T iL. Jackson

Date: June 10, 2013

_ MCCLURE ELECTRIC, INC'S RESPONSE TO PLAINTIFFS’ SEPARATE STATEMENT OF DISPUTED MATERIAL ACTS :~ MCCLURE ELECTRIC, INC. uereinaier “MCCLURE” or “Defendant” hereby
“| submit the following responses to Plaintiffs’ Separate Statement ‘of Disputed Material Facts .
in Support of Plaintifis' Opposition to MCCLURE'S Motion for or Summary Judgment on, in
the Atecuative, Summary Adjudication. .

~ PLAINTIFFS' DISEUTED oe

2 -MATERIAL FACTS . :
| Plaintiff ROBERT: ROSS was a career.

insulator. “Throughout his career as.an*

insulator from 1959 to the early 1990s, Mr. -

| ROSS worked at hundreds of. i locations “|

~}and sites... oes

= MCCLURE'S RESPONSE AND .
SUPPORTING EVIDENCE =

Robert Ross, filed concurrently herewith.

Defendant objects to! the admissibility of
Mr. Ross's Declaration for the following
reasons: Irrelevant (Evid. Code, §§

Declaration of Robert a attached as as
-| Exhibit B to the Declaration of. Anne T.

Scope of Expert Opinion (vid. Code,'§ °
Acufia, q 2 :

801); Inadmissible under. Whitmire v..
Ingersoll-Rand Co. (2010) 184 Cal. App.
Ath 1078 and McGonnell v. Kaiser Gypsum.
Company, Inc. (2001) 98 Cal. -App- 4th
1098. :

a Defendant farther objects on the grounds
that plaintifis' statement is overbroad, ©
vague, ambiguous, ‘and irrelevant.

Accordingly, this alleged fact does not
raise triable i issue of disputed fact.

As he testified in his deposition, Mr. ROSS
worked alongside employees of - :
- °:| MCCLURE ELECTRIC, INC, at ‘the
"| remodel ofa high-rise building in’ -

“| downtown San] Francisco, California

| between 1967 and 1972: At this site asa.
journeyman insulator, Mr. ROSS. ee

| performed insulation work on air
‘conditioning and heating ducts. He did this
_| work over three different jobs within that
: ‘time patio f for a total of of pproninately 10 Defendant objects | to the adatisaibility of |
| Mr. Ross's Declaration and to plaintiffs’

| Robert Ross filed concurrently herewith.

: Defendant objects on the ‘grounds that . 8

ambiguous, irrelevant, and as it misstates
plaintiffs testimony as to MCCLURE: So
work in proximity.to plaintiff, itis
therefore misleading.

- Deposition of. Robert. Ross, attached : ase
=. | Exhibit A to the Acufia Decl. at 2349:19-
a 2350: 1 L Leese Ross Decl., Exhibit tbo

350, 352); Lacks foundation; Outside
Scope of Expert Opinion vid. Code; §-
801); improper pinion See. Code =u SS

~ MOGLURE ELECTRIC ING'S RESPONSE TO PLAINTIFFS: ‘SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS.

210,350, 352); Lacks foundation; Outside : :

See Bvidentiary Objection to.Declaration of ||.

: plaintiffs’ statement is overbroad, vague, “|

_-| statement: ‘Irrelevant (Evid. Code, §§ 210, oS-. PLAINTIFFS’ DISPUTED.
- MATERIAL FACTS

MCCLURE'S RESPONSE AND :
“SUPPORTING EVIDENCE

to the Acufia Decl. at 13.

. | Examiners (1974) 11.C.3rd.1; Inadmissible

“| Ingersoll-Rand Co, (2010).184 Cal: App.
<| 4th 1078; McGonnell v. Kaiser Gypsum

: (2008), 158 Cal. App. 4th 666.

“| on these grounds. -

: Accordingly, this alleged | fact does not

800, 803); Inadmissible under Whitmire v.

Company, Inc. (2001) 98 Cal.App.4th
1098; D’Amico v. Board of Medical

Hearsay (Evid. Code, §1200), DiCola v.
White Brothers Performance Products,. Inc.

Further, ‘taken together with: his declaration,

the deposition testimony of Mr. Rossis :

rendered speculative, overbroad,’ vague,
ambiguous, and unintelligible, and
MCCLURE objects to plaintiff's testimony.

raise a triable issue of disputed fact.

“| Every day.that Mr. ROSS was at that :
building, he saw employees of. MCCLURE
working around him. He was able to.” -
identify them as employees of MCCLURE

o based on their company’s name on their a

hard hats and other things on the job, like
| tool boxes. Mr. ROSS saw MCCLURE ©
: employees hanging pipe on Unistruts to
| ‘connect the lights or fixtures. To hang pipe,
~-| MCCLURE employees hung Unistruts with
| clamps from the ceiling with rebar. The

ceilings were covered with a spray-on

| fireproofing material that MCCLURE.
employees would scrape off and shoot their
~ | studs through. On multiple occasions, Mr.

o ROSS was within 5 to 25. fect from this

: Ross Deposition, Exhibit Ato o the Acuiia
=| Decl. at 2355: 82357: 17, 2308: 8- 14,
2358:25- 2359:4.

| plaintiff's testimony as to MCCLURE's

_| statement: Irrelevant (Evid. Code, §§ 210,

-| Scope of Expert Opinion (Evid. Code, § =

: Examiners 1974) 11. 3rd 1; Inadmissible

See Evidentiary Objection to Declaration of.
Robert Ross filed concurrently herewith.

Defendant objects on the grounds that :
plaintiffs' statement is overbroad, vague, °
ambiguous, irrelevant, and as it misstates. -

work in proximity to plaintiff, itis ~~
therefore misleading. : :

Defendant objects to the admissibility of.
Mr. Ross's Declaration and to plaintiffs’:

350, 352); Lacks foundation; Outside

801); Improper Opinion (Evid. Code §§
800, 803); Inadmissible under Whitmire we
Ingersoll-Rand Co, (2010) 184 Cal. App.
th 1078; McGonnell v. Kaiser Gypsum...
Company, Inc. {2001) 98 Cal.App.4th - ~
1098; D’Amico v. Board of Medical

~ “MCCLURE ELECTRIC, INC.'S RESPONSE TO PLAINTIFFS’ SEPARATE STATEMENT OFDSPUTED MATERIALEACTS os“PLAINTIFFS DISPUTED _
“MATERIAL FACTS °.

MCCLURE'S RESPONSE AND ||
SUPPORTING EVIDENCE

Tr Ross Ded. Exhibit B tothe Acufia Deel,
atta

te (2008) 158 Cal. App. 4th 666.

- ambiguous, and unintelligible, and

Accordingly, this alleged fact does not-
ES raise: a triable issue of disputed fact.

Hearsay (Evid. Code, §1200), DiCola v.
‘White Brothers Performance Products, Ine.

. Further, taken together: with his. declaration, cus
:| the deposition testimony of Mr. Ross is

rendered speculative, overbroad, ‘vague, -.

MCCLURE objects to Plaintiffs testimony
on these grounds. :

on fireproofing material that he saw

| 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--

non-asbestos vacety.

oe Ross Deposition, Exhibit A to 6 the Acuiia
| Decl, at 2359: 15- 17, 2360: 124-2361: 1,
2360: 21-2362

Ls Ross Decl., Exhibit Bf the Acifia Ded,
ats. es

4.1 As he testified in his deposition, the spray-

MCCLURE employees scrape and disturb _
was an old, gray, finer material with fibers. -

| Mr. Ross's Declaration and to plaintiffs’.

containing fireproofing material from the -

~| 4th 1078; ‘McGonnell vy. Kaiser. Gypsum

= Further, taken’ together with his. declaration,

See Bvidentiary Objection to Dedaration of :

Robert Ross filed Concurrently herewith.

Defendant objects on the grounds that oS
plaintiffs’ statement is overbroad, vague, -

ambiguous, irrelevant, and asitmisstates ||

plaintiff's testimony. as to MCCLURE! ‘So
work in proximity to plaintiff, itis.
therefore misleading. : :

Defendant objects to the aciaahiley of:

statement: “Irrelevant (Evid. Code, §§ 210,
350, 352); Lacks foundation; Outside. —
Scope of Expert Opinion (Evid. Code, §
801); Improper Opinion (Evid. Code gs
800, 803); Inadmissible under Whitmire v.
Ingersoll-Rand Co. (2010). 184 Cal. “App.

Company, Inc. . (2001) 98 Cal. App. 4th
1098; D’Amico v. Board of Medical”

‘Examiners (1974) 11-C.3rd.1; Inadmissible a
a ‘Hearsay (Evid. Code, §1200),, DiCola v. Sap es
: White Brothers Performance Products, Ine Bue ae

(2008) 158 Cal. App. Ath 666.

the deposition testimony of Mr, Ross is

rendered speculative overbroad, age

~ WECLURE ELECTRIC, INC: "§ RESPONSE TO PLAINTIENS SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS :~ PLAINTIFFS" DISPUTED

“MCCLURE'S RESPONSE AND”
- SUPPORTING EVIDENCE

~-:| when viewed up close, whereas the. ~

"| being applied. On that job, Mr ROSS
| Jearned how to differentiate between
| asbestos-fireproofing versus the non-

_ MATERIAL FACTS :

a on these grounds.

“ raise a triable issue of disputed fact.

anbignous: and unintelligible, and —
MCCLURE objects to plaints testimony.

Accordingly, this alleged fact does not

. | AS.a career insulator working with and

~ | around. asbestos-containing materials on :

| construction sites, Mr. ROSS has come to.
| learn and is 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 -

asbestos-free fireproofing did not. Mr.
ROSS did not see this later type of —-
fireproofing on jobsites until approximately.
~-| the mid-1970s. Mr. ROSS leamed that the
| old, finer, gray material with fibers sticking .
out described above contained asbestos
because when he was at'a job in the late.
| 1970s in San Francisco wherein that type
of fireproofing was used throughout, it later:
required proper 3 asbestos abatement :
removal, which he had later in his career
become trained on. At that job, Mr. ROSS:

| saw the old type of fireproofing being’

'| abated and the new type of fireproofing -

asbestos type. That knowledge was:

~~. | confirmed on various different settings”

‘throughout his career, especially in the
1980s when controls began to be instituted
“| to protect workers. from « exposure to
2S asbestos comtatning materials.

: Defendant objects on the grounds that

therefore misleading.

| Mr. Ross's.Deciaration and to plaintiffs’ :
statement: Irrelevant (Evid. Code, §§ 2 210, qe
| 350,352); Lacks foundation: Outside -

‘| Ingersoll-Rand Co. (2010) 184 Cal. App.

: Examiners (1974) 11-C.3rd 1; Inadmissible

: Further, taken together with his accion

: rendered speculative, overbroad, vague,

| raise a triable issue of disputed fact.

See Bvidentiary Objection to Declaration of

Robert Ross filed concurrently herewith.

plaintiffs’ statement is overbroad, vague;
ambiguous, irrelevant, and as it misstates:
plaintiff's testimony as to. MCCLURE's :
work in proximity to Pleintf, iti is A

Defendant objects to the aderisabitiny of

Scope of Expert Opinion (Evid. Code, §.: :
801); Improper Opinion (Evid. Code §§
800, 803); Inadmissible under Whitmire v.-

4th 1078; McGonnell v. Kaiser Gypsum -
Company, Inc. (2001) 98 Cal. App. 4th |
1098; D’Amico y. Board of Medical...

Hearsay (Evid. Code, §1200), DiColav..
White Brothers Performance Products, Inc.
(2008) 158 Cal. APP. 4th 666." cos

‘the deposition testimony of Mr. Ross i is”
ambiguous, and unintelligible, and

MCCLURE objects to Plnintift's testimony :
on these grounds. See :

Accordingly, this alleged fact does not”

~ . MCCLURE ELECTRIC, INC.'S RESPONSE: TO PLAINTIFFS’ ‘SEPARATE STATEMENT. (OF DISPUTED MATERIAL FACTS‘PLAINTIFES" DISPUTED
“MATERIAL FACTS =

“MCCLURE'S RESPONSE AND

Ross Decl. Exhibit B to the Acuia.
Decl., at] 6. :

_SUPPORTING EVIDENCE _ :

6...) Mr- ROSS recently reviewed the 0
: ‘declaration of Cary Hedman, who is.an .
engineer at the Mills Building on 220 ©”
Montgomery. Street, San Francisco,
'| California. If the assertions he makes that
~| there is not and never has been any. spray-
‘pon. fireproofing i in the Mills building is true
-| then it must be a different building in
'| downtown San Francisco that Mr, ROSS -
-| saw MCCLURE employees doing the work
he described above. Mr. ROSS’s review of
Mr. Hedman’s declaration does not cause
him to change the testimony that he gave in
-| his :deposition : about the work that he saw.

at a high-rise building in downtown San
-| Francisco between 1967 and 1972. Mr.
ROSS. distinctly remembers that job and

| material with fibers ‘sticking out, spray-on

~| asbestos fireproofing that MCCLURE and
“| the other trades were scraping and ‘shooting
their hangers ; into. While itis possible that
Mr. ROSS may have gotten the name of the
building wrong at his deposition, given that.
he worked in hundreds of different jobsites,
_ | many. of which were high-rise buildings in
“| downtown San Francisco substantially

-| similar to the Mills Building, Mr. ROSS
remains certain that he saw MCCLURE
employees disturb. asbestos-containing S

. fireproofing around him on between 1967-
and 1972. : :

MPS Ross Decl., ‘Exhib CB tothe Acuta :
Decl. at 17.0 :

“| See Evidentiary Objection to Declaration of
: Robert Ross filed concurrently herewith.

“| work in proximity to plaintiff, itis.
: therefore. misleading. :

MCCLURE employees doing around him *

. .| Ingersoll-Rand Co, (2010) 184 Cal. App.”
-| how that building had that old, gray, finer.

1098; D’Amico v, Board of: ‘Medical.

'| the deposition testimony of Mr. Ross is:

:| ambiguous, and unintelligible, and

‘Accordingly, t this alleged fact does not
False: a triable i issue of disputed fact. we

Defendant ‘obj ects on the grounds that.
plaintiffs' statement is overbroad, vague,
ambiguous, irrelevant, cand as it misstates ~
plaintiffs testimony as to MCCLURE's -

Defendant objects to the ackaoaiitiy of
Mr. Ross's Declaration and.to plaintiffs'
statement: Irrelevant (Evid. Code, §§.210,
350, 352); Lacks foundation; Outside
Scope. of Expert Opinion (Evid. Code, §
801); Improper. Opinion, (Evid. Code §§
800,803); Inadmissible under Whitmire v.

4th 1078; McGonnellv. Kaiser Gypsum
Company, Inc. (2001) 98 Cal-App.4th es

‘Examiners (1974).11-C. 3rd 1; Inadmissible:
Hearsay. (Evid. Code, §1200), DiCola v.
White Brothers Performance Products, Inc.
(2008) 158 Cal. App. 4th 666. :

Further, taken together with his declaration,

| rendered speculative, overbroad, ‘vague,

“MCCLURE objects to Plaintifie testimony.
on these grounds.” :

7. | MCCLURE employees did not take any
~.| measures to avoid or. reduce the creation of
-< | ‘dust from their work: They did not.
physically isolate the 2 areas where: they:
: distutbed asbestos. con i

See Evidentiary Ob; ection to Declaration of |

| Defendant objects ¢ on the grounds that”

tnaterials and

Robert. OSS filed concurrently herewith.

laintifts statement i is overbroad, ¥ vay

: CCE HIECTRIC, “NCS RESPONSE TO FLATTS SEPARATE STATEMENTOF DISPUTED MATERIAL FACTSPLAINTIFFS' DISPUTED. .
MATERIAL FACTS _

MCCLURE'S RESPONSE AND
SUPPORTING EVIDENCE

created dust nor did they undertake any
| measures to warn or exclude workers like
Mr. ROSS from being in close proximity
when they created asbestos dust.

Ross Decl., Exhibit B to the Acufia
Decl., at 4 8.

ambiguous, irrelevant, and as it misstates
plaintiff's testimony as to MCCLURE's
work in proximity to plaintiff, itis ~
therefore misleading, —~

Defendant objects to the admissibility of
Mr. Ross's Declaration and to plaintiffs’
‘statement: - Irrelevant (Evid. Code, §§ 210,
350, 352); Lacks foundation; Outside
Scope of Expert Opinion (Evid. Code, §
801); Improper Opinion (Evid. Code §§
800, 803); Inadmissible under Whitmire v.
Ingersoll-Rand Co. (2010) 184 Cal. App. -
4th 1078; McGonnell v. Kaiser Gypsum
Company, Inc. (2001) 98 Cal.App.4th
1098; D'Amico v. Board of Medical...
Examiners (1974) 11 C.3rd 1; Inadmissible
Hearsay (Evid, Code, §1200), DiCola v.
White Brothers Performance Products, Inc.

“| (2008) 158 Cal. App. 4th 666.

Further, taken together with his declaration,
the deposition testimony of Mr. Ross is
rendered speculative, overbroad, vague,
ambiguous, and unintelligible, and
MCCLURE objects to plaintiffs testimony
‘on these grounds,

Accordingly, this alleged fact does not

raise a triable issue of disputed fact.

Dated: May 2-, 2013

~SINUNU BRUNI LLP.

A eys for Defer
CLURE ELECTRIC, INC.

MCCLURE ELECTRIC, INC.'S RESPONSE TO PLAINTIFFS’ SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS ~