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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 
						
                                
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                                BS

Law

IMAI, TADLOCK, KI

1
CA Od bod

& CORDERY, LLP

SAN FRANCIS

(445) 675-7000

Bruce Imai, Esq. (Bar No. 053800)

Tina Yim, Esq. (Bar No. 232597)

IMAL TADLOCK, KEENEY & CORDERY, LLP
100 BUSH STREET, SUITE 1300

ELECTRONICALLY

SAN FRANCISCO, CA 94104 FILED.
Telephone: (415) 675-7000 Superior Court of Cliorna,
Facsimile: (415) 675-7008 County of San Francisco

MAY 03 2013

Attorneys for Defendant Clerk of the Court

COMMAIR MECHANICAL SERVICES BY: ALISON AGBAY
Deputy Clerk

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO
UNLIMITED JURISDICTION

ROBERT ROSS and JEAN ROSS, CASE NO.: CGC-10-275731
(ASBESTOS)

Plaintiffs,
COMMAIR MECHANICAL SERVICES’

v. REPLY TO OPPOSITION TO MOTION
FOR SUMMARY JUDGMENT OR, IN THE
ALTERNATIVE, SUMMARY

C.C. MOORE & CO. ENGINEERS, et al., ADJUDICATION

Date: May 9, 2013
Defendants. Time: 9:30 a.m.

Dept: 503

Judge: Hon. Teri L. Jackson

Complaint Filed: December 17, 2010
Trial Date: June 10, 2013

L INTRODUCTION
Plaintiffs’ Opposition attempts to state that Defendant has failed to shift the burden of
proof, However, Defendant COMMAIR MECHANICAL SERVICES (“Commair’) has satisfied
its initial burden by showing that one of the essential elements of Plaintiffs’ claim — duty, cannot
be established. It is clear that Plaintiff's union, Local 16 of the International Association of Heat
& Frost Insulators and Asbestos Workers, was aware of the hazards of asbestos prior to the time
Mr. Ross became a union member. Plaintiff himself admits in his Interrogatory Responses that he

was aware of the hazards of asbestos since the 1960's. As such, Plaintiff was clearly a

Ae
COMMAIR MECHANICAL SERVICES REPLY TO OPPOSITION TO MOTION FOR SUMMARY
JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONEY & CORDERY, LLP

LAW OFFICES

IMAI, TADLOCK, KE!

sophisticated user of asbestos products, as stated in Johnson v. American Standards, Inc.
Regardless of any alleged exposure to asbestos through the actions of Commair Builders, as a
sophisticated user of asbestos products, Plaintiff was in fact aware of the hazards of such
products, absolving Defendant of any duty to warn.

Plaintiffs’ Opposition to Commair’s Motion for Summary Judgment also indicates that
Plaintiffs will dismiss the strict products liability cause of action. As of the filing of this Reply,
no such dismissal has been filed. Plaintiffs’ Opposition does not provide any evidence
establishing that Commair was a manufacturer, supplier or distributor of any asbestos-containing
products, nor have they opposed Commair’s Motion for Summary Adjudication as to the strict
liability cause of action. Accordingly, Commair requests the Court to grant Summary Judgment in
this case.

Hf. LEGAL ARGUMENT

A. Johnson v. American Standard provides an affirmative defense which absolves
Defendant of any duty to warn about the hazards of asbestos.

Contrary to Plaintiffs’ assertion, under the sophisticated user defense, the inquiry is
whether the Plaintiff knew or should have known of the particular risks of harm from the product
giving rise to the alleged injury. (Johnson v. American Standard, Inc. (2008) 43 Cal. 4" 56,71.)
Furthermore, the sophisticated user defense looks at the class of users, rather than an individual
plaintiff's subjective knowledge. If the plaintiff is deemed to be “sophisticated,” the manufacturer
is then relieved of the duty to warn about “what is generally known or should have been known to
the class of sophisticated users.” (/d. at 65-66.)

Similar to Johnson, Plaintiff, as a member of the Asbestos Workers Union’s Local 16,
underwent an apprenticeship where he was trained in the use of asbestos insulation products.
(UMF Nos. 5-6.) He also attended Union meetings and received Union newsletters. (UMF No.
7.) By virtue of the training Plaintiff received from his Union, Plaintiff was familiar with the
content and use of the insulation products he was trained to work with.

Tn their Opposition, Plaintiffs contend that the Union had no obligation or duty to warn
about the hazards of asbestos as there is no implied duty to furnish a safe workplace. However,

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COMMAIR MECHANICAL SERVICES’ REPLY TO OPPOSITION TO MOTION FOR SUMMARY
JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION1} such argument is irrelevant to the sophisticated user defense. As pointed out in Johnson,

2 || “Defendant also claimed it had no duty to warn about the risks of R-22 exposure because it could
3 |] assume that the group of trained professionals to which plaintiff belonged, and plaintiff himself,
4 || were aware of those risks.” (Johnson v. American Standard, Inc., supra, 43 Cal.4" at 64.) While
5 || Mr. Johnson received training from his employer, he also received off the job HVAC training and
6 || attended ITT Technical Institute for a year. (/d. at 61.) Although the Johnson Court did not

7 || discuss whether a union had the duty to provide the safe workplace, rather, the defendant should
8 || be allowed to rely upon the training that the plaintiff had undergone to be well-apprised of the

9 || potential hazards of his trade.

% 0 Regardless of whether Plaintiff's Union had a duty to provide Plaintiff with a safe

z 1 || workplace, the Union had knowledge of the hazards of asbestos since at least 1957. In fact in

3 , 12] 1957, Plaintiff's own Local 16 had raised the issue regarding the hazards of asbestos.’ (UMF No.
g : 3] 10.) All of this knowledge was made available to all Union members through the promulgation of
mse

4]|| its newsletter, The Asbestos Worker? (UME Nos. 14-16.) As a trained member of Local 16,

5
(445) 675-7000

3 g = 2 415 || Plaintiff should have known of the hazards of asbestos when he joined the Union in 1959, and
a =
g g 6]| even admits that he actually knew of the hazards since the 1960’s. (UMF No. 9.) Thus, as a
=
4 7 || sophisticated user, Defendant was not obligated to warn Plaintiff of the hazards of asbestos at his
=
q 18 |! jobsite.
z
9]| B. Plaintiff, as a sophisticated user, is still responsible to take reasonable precautions to
avoid injury.
20
Plaintiffs also argue in their Opposition that even if Mr. Ross is to be considered a
21
sophisticated user when he learned of the hazards of asbestos in the 1960’s, the sophisticated user
22
defense does not serve as a complete defense to Plaintiffs’ negligence cause of action. Plaintiffs
23
24

' Plaintiffs’ evidentiary objections to the Declaration of Jeffrey Birkner and its accompanying exhibits are without
25 merit. An expert witness can base their opinions upon reliable hearsay. (People v. Jennings, (2010) 50 Cal. 4th 616,
650.) This includes out-of-court declarations testified as to the truth of the matter. (dn re Scott, 29 Cal. 4 783, 822-
823.) In this case, Mr. Birkner relied upon the testimony of Steve Steele, taken under penalty of perjury. Even if the
testimony was taken in another action, Plaintiffs have made no objection that the testimony was untruthful or that the
witness was not sworn under oath. As such, Mr. Birkner’s reliance upon Mr. Steele's testimony and the exhibits are
27 not objectionable and this defendant respectfully requests this Court to overrule all of Plaintiffs’ objections.

? Plaintiffs’ objection that Mr. Steve Steele did not become a journeyman until 1972 is not based on testimony cited
28 || in their objection. As such, Plaintiffs objection is without merit and should be overruled.

3.
COMMAIR MECHANICAL SERVICES REPLY TO OPPOSITION TO MOTION FOR SUMMARY
JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION0

Y & CORDERY, LLP

5

IMAI, TADLOCK, KEE

z
z

base this argument on the premise that Defendant is still liable for its alleged actions in causing
purported asbestos-containing materials to be swept up in Mr. Ross’ presence. Simply put, despite
having knowledge of the hazards of asbestos, one can simply choose not to take any precautions
when around others working with asbestos. This faulty logic would reward a plaintiff who fails to
heed any warnings or take precautions around known hazards.

As a sophisticated user, which Plaintiffs concede Mr. Ross became when he learned about
the hazards of asbestos in the 1960’s, it was not necessary to warn Mr, Ross of the dangers which
he was aware or should have been aware. (See Johnson v. American Standard, Inc., supra, 43
Cal.4” at 66.) Regardless of whether Plaintiff was personally using asbestos materials or was in
the presence of others alleging using asbestos materials, as a sophisticated user, he was obligated
to take steps to avoid his own exposure to asbestos.

By way of analogy, if a person wears a protective suit when working around a radioactive

product because he was trained in the hazards of radioactive materials, it would be illogical for
him to remove or not wear the protective suit when others are working with radioactive materials
in his presence and claim that others caused him harm. Similarly, Plaintiff cannot blame
defendants for asbestos exposure when he is aware of the hazards of asbestos, but fails to take any
measures to protect himself from such hazards. By failing to take such risks, Plaintiff has
assumed the risk of working with a hazardous product.

Cc Commair has not received any dismissal of Plaintiffs’ cause of action for Strict
Liability.

Under Code of Civil Procedure 437c(o)(1), an action has no merit if one or more of the
elements of the cause of action cannot be separately established, even if that element is separately
pleaded. Through summary adjudication, Commair requests the Court to dismiss Plaintiffs’ cause
of action for strict liability on the basis that Plaintiff cannot prove critical elements of those
causes of action against Commair.

A defendant is not required to affirmatively disprove plaintiff's claims (Hunter v. Pacific
Mechanical Corp., (1995) 37 Cal.App.4"" 1282), but merely establish there is insufficient
evidence to establish a necessary element of the cause of action. (Aguilar v. Atlantic Richfield Co.

4.

COMMAIR MECHANICAL SERVICES’ REPLY TO OPPOSITION TO MOTION FOR SUMMARY
JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONEY & CORDERY, LLP

LAW OFFICES

IMAI, TADLOCK, KE!

(2001) 25 Cal.4” 826, 853.) Here, Commair propounded a “state all facts” interrogatory designed
to elicit all information in support of Plaintiffs’ strict liability cause of action. (UMF No. 20.) In
response, Plaintiffs stated they have “no information responsive to this Interrogatory.” (UMF No,
21.)

Since Plaintiffs’ Opposition fails to provide any evidence supporting their cause of action
for strict liability, summary adjudication should be granted.

II. CONCLUSION

Plaintiff cannot and has not denied that he was aware of the hazards of asbestos since the
1960’s. His union, Local 16 of the International Association of Heat & Frost Insulators and
Asbestos Workers, since 1957, was involved in raising the awareness of the hazards of asbestos.
Such knowledge was made available to all union members as published in The Asbestos Worker,
the official newsletter of the International Association of Heat & Frost Insulators and Asbestos
Workers. As a trained member of the Union, Plaintiff was a sophisticated user of asbestos
products, and had constructive knowledge of such hazards when he joined Local 16. Plaintiff
himself admits that by the 1960°s, he was aware of the hazards of asbestos. As such, pursuant to
Johnson v. American Standards, Commait had no duty to warn Plaintiff of the hazards of
asbestos, which were already known to him.

Alternatively, if this Court denies Commair’s Motion for Summary Judgment, Commair
requests that Summary Adjudication be granted against Plaintiffs’ cause of action for Strict

Liability.

Dated: May 3, 2013 IMAI, TADLOCK, KEENEY & CORDERY, LLP

By: /S/ Tina Yim
Tina Yim
Attomeys for Defendant
COMMAIR MECHANICAL SERVICES

5.
COMMAIR MECHANICAL SERVICES REPLY TO OPPOSITION TO MOTION FOR SUMMARY
JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONEY & CORDERY, LLP

LAW OFFICES

IMAI, TADLOCK, KE!

PROOF OF SERVICE
I, Heather Cherry, declare:

Lama resident of the State of California and over the age of eighteen years, and not a
party to the within action; my business address is 100 Bush Street, Suite 1300, San Francisco, CA
94104. On the date of execution below, I served the within documents:

COMMAIR MECHANICAL SERVICES’ REPLY TO OPPOSITION TO MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY
ADJUDICATION

by transmitting via facsimile the document(s) listed above to the fax number(s) set
forth below on this date before 5:00 p.m.

by placing the document(s) listed above in a sealed envelope with postage thereon
fully prepaid, in the United States mail at San Francisco, California addressed as set
forth below.

by personally delivering the document(s) listed above to the person(s) at the
address(es) set forth below.

>} On the date of execution below, | electronically served the document via
File&ServeXpress on the recipients designated on the Transaction Receipt located
on the File&ServeXpress Web site.

Brayton Purcell, LLP
222 Rush Landing Road
Novato, CA 94945-2469

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.

/s/ Heather Cherry
Heather Cherry

Ross, Robert and Jean v. C.C. Moore & Co. Engineers, et al..
SAN FRANCISCO SUPERIOR COURT NO. CGC-10-275731

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COMMAIR MECHANICAL SERVICES REPLY TO OPPOSITION TO MOTION FOR SUMMARY
JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION