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

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                                BRAYTON®@PURCELL LLP
ATTORNEYS AT LAW
222 RUSH LANDING ROAD
PO BOX 6169
NOVATO, CALIFORNIA 94948-6169
{415} 898-1555

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ALAN R. BRAYTON, ESQ., S.B. #73685
DAVID R. DONADIO, ESO., S.B. #154436
OREN P. NOAH, ESQ, Ss. 2 136310
JAMIE A. NEWBOLD, ESQ., S.B. #207186
BRAYTON®PURCELL LLP

Attorneys at Law

222 Rush Landing Road

P.O. Box 6169

Novato, California 94948-6169

G15) § 898-1555

entative Ruling Contest Email: contestasbestosTR @braytonlaw. com.

Attorneys for Plaintiffs

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

APR 25 2013

Clerk of the Court
BY: ALISON AGBAY
Deputy Clerk

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

ROBERT ROSS and JEAN ROSS,
Plaintiffs,

C.C. MOORE & CO. ENGINEERS;
Defendants as Reflected on Exhibit 1
attached to the Summary Complaint herein;
and DOES 1-8500.

vs. )
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Klouredt9349ipk MMAR,

ASBESTOS
No. CGC-10-275731

PLAINTIFFS’ MEMORANDUM OF
POINTS AND AUTHORITIES IN
OPPOSITION TO DEFENDANT
COMMAIR MECHANICAL SERVICES’S
MOTION FOR SUMMARY JUDGMENT
OR, IN THE ALTERNATIVE, SUMMARY
ADJUDICATION

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

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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TQ DEFENDANT COMMAIR MECHANICAL

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L INTENTS

I. INTRODUCTION 20000. c cece ccc enn e eee teen ene t ees 1

I. | STATEMENT OF FACTS 0.0.0.0. .0cc0ceeceeeeeeenees ec ee bs ece sees 2
Wl. LEGAL ARGUMENT.......... levee ee dneees Lovee ebb ba eee e ena es 2
A. THE SCOPE OF DEFENDANT'S MOTION IS LIMITED TO THE
ISSUES PRESENTED IN ITS SEPARATE STATEMENT OF
UNDISPUTED MATERIAL FACTS «2.0.00. cc cccceeeeeeeeeeneees 2
B. | DEFENDANT FAILED TO SHIFT ITS BURDEN OF PROOF SHOWING
PLAINTIFES CANNOT ESTABLISH ONE OR MORE ELEMENTS OF
THEIR CAUSES OF ACTION BY ANY MEANS .........-0.00000000- 4
C. DEFENDANT HAS FAILED TO MEET ITS BURDEN THATTHE —-
SOPHISTICATED USER DEFENSE PRONOUNCED IN JOHNSON vy.
AMERICAN STANDARD, INC. (2008) 43 CAL-ATH 56 APPLIES TO
THE CASEATBAR 20... ccc ccc c essen scceeecteeeneetnentensennes 6
D. | THEUNION HAS NO EXPRESS DUTY TO PROVIDE FOR SAFETY
IN THE WORKPLACE 20.0.0. c ccc c csc ccetcseteceeteeteeneeneee ea 8
E. THE SOPHISTICATED USER DEFENSE IS NOT A COMPLETE
DEFENSE TO PLAINTIFFS’ NEGLIGENCE CAUSE OF ACTION ...... 10
F. DEFENDANT’S ALTERNATIVE REQUEST FOR SUMMARY
ADJUDICATION SHOULD BE DENIED ........ 2... 000-000ee cree i
CONCLUSION 00.0.0 c ccc ecc ccc e eee e cee ence entree eben teen nen ne enea i
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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT COMMAIR MECHANICAL
SERVICES’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONeo Oo IW DH FF BW NY &

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TABLE OF AUTHORITIES

CASES
Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826 2.0.0.0... cece eee eee een eee 4-6
Chevron U.S.A., Inc. v. Super. Ct, (Cobb) (1992) 4 Cal App.4th 544 0.0... keer eee eee 5
Conn. v, National Can Corp. (1981) 124 Cal.App.3d 630 0.0.0... 2
Fleet v. CBS, Inc. (1996) 50 Cal. App.4th 191]... eee cece cere ene eee eee 3
Hawkins v. Wilton (2006) 144 Cal.App.4th 936 ...........606 ccc cbt a ee eeeneeeeees 5
Interinsurance Exchange of Automobile Club v. Superior Court (2007)

al App.4th 1218 oo cece cee nent e ent n ent e eee ee 5
International Brotherhood of Electrical Workers, AFL-CIO v. Hechler (1987) 481 U.S. 851 . 9
Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56 2.0... 0. cece cee 6-8, 10, 11
Juge v. County of Sacramento (1993) 12 Cal.App.4th 59 ... Sect e eee ee 2,3
Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243 .......0...00.0005 3
North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal. App.4th 22 ......... 3
San Diego Watercrafts, Inc, v. Wells Fargo Bank, N.A, (2002) 102 Cal.App.4th 308 ....... 3
Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 71-72 .... 0... eee ee 5
Steelworkers v. Rawson (1990) 495 U.S. 362 20... cece cece eee nett n tenes 9
Vaca v. Sipes (1967) 386 U.S. 171... een nent e enna 9
Villa v. McFerren (1995) 35 Cal.App.4th 733 2.0... cece eee ete tenes 5
STATUTES
California Code of Civil Procedure § 437¢ 2.0.0... ccc cc cence eet eee nets 2,3
California Code of Civil Procedure § 437c(a) .. 00.0 c ccc eee teeter ene woe. 3
California Code of Civil Procedure § 437¢(b) 0.010. e cece eee cree ene e cette eee nenees 5
California Code of Civil Procedure § 437c(b)(1) ..- 6c cee eee eee eee Liveueesedeeere 3
California Code of Civil Procedure § 437c(o)(2) ... cc tee eee eens 4
California Code of Civil Procedure § 437e(p)(2) ....-..-+- 05 deve ete eeeeeeeuees 4,6
California Code Regulations, tit. 8, § 519, subd. (h) 0.6.6. eee eee eee 8
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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEPENDANT COMMAIR MECHANICAL
SERVICES’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONoO YN DH BW YH

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TABLE OF AUTHORITIES (Cont’d.)

STATUTES (cont’d.)

California Code Regulations, tit. 8, § 5194, subd. (g) .. 0...
California Code Regulations, tit. 8, § 5194, subd. (g)(1), (2) occ eee ee
California Code Regulations, tit. 8, § 5194, subd. (h)(2)(c) «0. ee cece eee
California Code Regulations, tit. 8, § 5194, subd. (h)(2)(c), (D), (FE), (F) oo. eee ee ue

OTHER AUTHORITY
California Rules of Court 3.1350 0.00. t eee eneee
California Rules of Court 3.3150)... ccc ere tener eee enees

Restatement Second of Torts, section 388 2.0... c cette ee tenes

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PLAINTIFFS‘ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TQ DEFENDANT COMMAIR MECHANICAL
SERVICES’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

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1.
INTRODUCTION

Defendant COMMAIR MECHANICAL SERVICES (“COMMAIR”) asserts one (1)
argument in its Motion for Summary Judgment and/or Adjudication: the affirmative defense
that Mr. ROSS was a sophisticated user and thus COMMAIR owed no duty of care to
Mr. ROSS.!

Defendant’s argument that it is shielded from liability on account of a purported
affirmative defense of sophisticated user fails on two grounds. First, defendant fails to establish
that plaintiff was in fact a sophisticated user under applicable California law. Second, even if
plaintiff were considered to be a sophisticated user, the sophisticated user defense does not
amount to a complete defense and contrary to the defendant’s erroneous assertion does not
absolve defendant of a duty to exercise due care.

As to its showing of plaintiff's supposed sophistication, defendant presented no
evidence regarding what plaintiff knew about hazards of asbestos at the time he was exposed by
COMMAIR’s conduct. Defendant did not question plaintiff regarding whether he had received
training on the issue nor produced other evidence demonstrating that plaintiff had ever been
trained or formally advised in any way as to asbestos hazards. It only presented evidence that
articles had been published in a journal published by plaintiff's union. Defendant made no
showing that plaintiff had read the articles, that there was any requirement or expectation that
plaintiff had read the articles, or even that plaintiff had the opportunity to read the articles. The
defendant’s effort to stack inference upon inference fails to demonstrate that plaintiff knew or
ought to have known of asbestos hazards at the time defendant’s employees negligently exposed
him to asbestos.

However, even if defendant successfully demonstrated plaintiff to have been
sophisticated by pointing to plaintiffs’ response to Standard Asbestos Case Interrogatory

number 28 indicating he knew of the hazards of asbestos in approximately the 1960s, the

1 COMMAIR also seeks adjudication of the cause of action for products liability. However, plaintiff has
dismissed that cause of action making any argument regarding the same moot.

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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT COMMAIR MECHANICAL
SERVICES’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONoP wm YD A HB wD Dm

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sophisticated user defense, when it applies at all, applies ONLY to the duty to warn. It does not
relieve the defendant from its duty to exercise reasonable care to avoid injuring others by other
means. It provides no immunity for the negligence of its employees in exposing plaintiff to
asbestos.

COMMAIR has neither shown that plaintiffs’ evidence is deficient nor proffered
sufficient evidence to establish the affirmative defense of sophisticated user as a complete
defense. Thus, COMMAIR has failed to make the necessary prima facie showing to shift the
burden of producing evidence to plaintiffs.

IL.
STATEMENT OF FACT:

Mr. ROSS worked around COMMAIR sheet metal workers when he worked at U.S.
Dept. of Agriculture in Albany, California, and at an unknown location on the San Francisco
Peninsula sometime between the years of 1967 and 1972. (Defendant’s Separate Statement of
Undisputed Material Facts (“SS”) Nos. 17 & 18.) Mr. ROSS recognized that the fireproofing
contained asbestos based on the appearance, and his knowledge that older fireproofing
contained asbestos from his work at jobsites. (SS No. 19.)

Tl.
LEGAL MENT.
A. THE SCOPE OF DEFENDANT'S MOTION IS LIMITED TO THE ISSUES
PRESENTED INS SEPARATE STATEMENT OF UNDISPUTED
California Code of Civil Procedure § 437c imposes “on. the moving party both a

pleading requirement and a substantive burden in order to prevail on a motion for summary
judgment.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 66.) “[T]he initial duty
to define the issues presented by the complaint and to challenge them factually is on the
defendant who seeks a summary judgment.” (Conn. v. National Can Corp. (1981)

124 Cal.App.3d 630, 638.) This duty requires a defendant seeking summary judgment to set
forth in its moving papers “with specificity (1) the issues tendered by the complaint or answer

which are pertinent to the summary judgment motion and (2) each of the grounds of law upon

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PLAINTIFES' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT COMMAIR MECHANICAL
SERVICES’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION2 OY HH BF WwW YN —

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which the moving party is relying in asserting that the action has no merit or there is no defense
to the action.” (Juge, 12 Cal.App.4th at 67.)

Specifically, “[t]he Separate Statement of Undisputed Material Facts in support of a”
motion must separately identify each cause of action, claim, issue of duty or affirmative
defense, and each supporting material fact claimed to be without dispute with respect to the
cause of action, claim, issue of duty, or affirmative defense. (Cal. Rules of Court, rule
3.3150(d), emphasis added.) “The due process aspect of the separate statement requirement is
self-evident, to inform the opposing party of the evidence to be disputed to defeat the motion.”
(San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316.)

“Failure to comply with this requirement of a separate statement may in the court’s discretion
constitute a sufficient ground for denial of the motion.” (C.C.P. § 437c(b)(1)) “Facts stated
elsewhere [other than in the separate statement] need not be considered by the court.” (lect v.
CBS, Inc. (1996) 50 Cal.App.4th 1911, 1916.) Due process further requires the Court to
exclude any evidence which was not timely served in accordance with C.C.P. § 437c(a). (San
Diego Watercrafts, Inc., 102 Cal.App.4th at 316.) “Thus, when the ‘fact’ is not mentioned in
the separate statement, it is irrelevant that such fact might be buried in the mound of paperwork
filed with the court, because the statutory purposes are not furthered by unhighlighted facts.”
(North Coast Business Park v, Nielsen Construction Co, (1993) 17 Cal. App.4th 22, 31.)

Further, defendant cannot expand the scope of its argument or offer new evidence in
response to either plaintiffs’ response to defendant's Separate Statement or to plaintiffs’ own
Separate Statement if one was necessary. There is no provision in either C.C.P. § 437c or
California Rules of Court 3.1350 authorizing or allowing a response to the opposing party’s
Separate Statement. (See, Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 253.)
Therefore, any supplemental declarations, documents, or additional evidence presented by ©
defendant in its reply brief or at the hearing on this motion must be disregarded,

Here, defendant makes one argument: (1) that defendant owed no duty to plaintiff
because Mr. ROSS was a sophisticated user.

it

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PLAINTIFES' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT COMMAIR MECHANICAL
SERVICES'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION2 OY DW BF WN me

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Defendant does not dispute that its employees engaged in negligent practices in their
handling of the asbestos-containing materials in Mr. ROSS’s presence. Defendant merely,
erroneously, claims that it owed Mr. ROSS no duty to exercise reasonable care. Nor does
defendant argue any failure of evidence of exposure or medical causation.

The only issues for the Court to decide are:(1) the sufficiency of defendant’s evidence
attempting to demonstrate Mr. ROSS to have been a sophisticated user; and (2) if plaintiff were
shown to be sophisticated, whether such sophistication absolves defendant of its duty to
exercise due care in its work practices.

B. DEFENDANT FAILED TO SHIFT ITS BURDEN OF PROOF SHOWING

PLAINTIFFS CANNOT ESTABLISH ONE OR MORE ELEMENTS OF.
THEIR CAUSES OF ACTION BY ANY MEANS

California Code of Civil Procedure § 437c(p)(2) describes the evidentiary burden a
moving defendant must meet:

A Defendant .. has met his or her burden of showing that a cause of action

has no merit if that party has shown that one or more elements of the cause of

action .. cannot be established, ox that there is a complete defense to that cause

of action, Once the Defendant .. has met that burden, the burden shifts to the

plaintiff .. to show that a triable issue of one or more material facts, exists as to

that cause of action or a defense thereto, (Code of Civil Procedure § 437c(p)(2),
emphasis added. See also the Cal. Supreme Court’s interpretation in Aguilar v.

Atlantic Richfield Co, (2001) 25 Cal.4th 826, 850-851.)

Defendant fails to carry its threshold burden of producing competent evidence
establishing facts negating plaintiffs’ claims. In Aguilar v. Atlantic Richfield Company (2001)
25 Cal.4th 826, the California Supreme Court “clarified the law that courts must apply in ruling
on motions for summary judgment.” The Aguilar court held that “from commencement to
conclusion, the party moving for summary judgment bears the burden of persuasion that there is
no triable issue of material fact and that he is entitled to judgment as a matter of law." (1d, at
845.) "A defendant bears the burden of persuasion that ‘one or more elements of” the ‘cause of
action’ in question ‘cannot be established,’ or that ‘there is a complete defense’ thereto.” (Id. at
849, quoting C.C.P. § 437c(0)(2).)

"Summary judgment law in this state, however, continues to require a defendant moving

for summary judgment to present evidence, and not simply point out through argument, that the

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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES EN OPPOSITION TO DEFENDANT COMMAIR MECHANICAL
SERVICES*S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONCO eR DH RB WwW we

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plaintiff does not possess, and cannot reasonably obtain, needed evidence. In this particular at
least, it still diverges from federal law. For the defendant must ‘support[]’ the ‘motion’ with
evidence including ‘affidavits, declarations, admissions, answers to interrogatories, depositions,
and matters of which judicial notice ’ must or may ‘be taken....’" (id. at 855, quoting C.C.P.

§ 437c(b).) Thus, ifa defendant relies upon the argument that a plaintiff cannot establish an
essential element of a claim, it must produce evidence to establish plaintiff's inability. It is not
enough for the defendant to merely point out that plaintiff does not possess, and cannot obtain,
the necessary evidence but rather must present evidence to establish this fact. (Interinsurance
Exchange of Automobile Club v. Superior Court (2007) 148 Cal.App.4th 1218, 1228. )

In order to shift the burden, the defendant cannot simply assert a lack of evidence.
Rather, defendant, as the moving party, has the burden of demonstrating through the
presentation of facts and evidence that plaintiff cannot establish one or more elements of his or
her causes of action. (C.C-P. § 437 (0)(2); Scheiding v. Dinwiddie Construction Co. (1999)

69 Cal. App.4th 64, 71-72; Villa v. McFerren (1995) 35 Cal.App.4th 733.) “The moving party

must show that under no possible hypothesis within the reasonable purview of the allegations of
the complaint is there a material question of fact which requires examination by trial.”

(Chevron U.S.A., Inc. v. Super. Ct, (Cobb) (1992) 4 Cal.App.4th 544, 548.) “If the defendant

does not satisfy its burden as the moving party, the motion must be denied, and it is
unnecessary for the court to consider the plaintiff’s opposition, if any.” (1d,, emphasis added.)
If the moving party can make a prima facie showing of the nonexistence of any triable
issue of material fact, the opposing party is then “subjected to a burden of production of his own
to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar at
850.) The corollary to this is that if the defendant cannot establish that the plaintiff cannot
prove his case, the motion must be denied before plaintiff's evidence of material facts even
needs to be considered. “Where the evidence submitted by a moving defendant does not
support judgment in his favor, the court must deny the motion without looking at the opposing
evidence, if any, submitted by the plaintiff. (Citation.)” (Hawkins v. Wilton (2006)
144 Cal.App.4th 936, 940.) In ruling on the motion, the court must “consider all of the

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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT COMMAIR MECHANICAL
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evidence” and “all” of the “inferences” reasonably drawn therefrom, and must view such
evidence in the light most favorable to the opposing party. (Aguilar v. Atlantic Richfield
Company, supra 25 Cal.4th 826, 843.)

Here, defendant has failed to make the requisite prima facie showing that plaintiffs lack
evidence that Mr. ROSS was exposed to asbestos from the conduct of defendant. Plaintiffs’
responses set forth sufficient foundation and information regarding the asbestos content of
products disturbed and swept up by COMMAIR employees in Mr. ROSS’s presence, thus
exposing him to the same. Therefore, the burden has not shifted to require plaintiffs to provide
evidence creating a triable issue of fact.

Cc. DEFENDANT HAS FAILED TO MEET ITS BURDEN THAT THE

SOPHISTICATED USER DEFENSE PRONOUNCED IN JOHNSON v.

AMERICAN STANDARD, INC. 43 Cal.4th 56 (2008) APPLIES TO THE CASE

When asserting an affirmative defense as defendant does here, defendant bears the
burden of producing evidence sufficient to establish all elements of the affirmative defense.
(C.C.P. § 437¢(p)(2).) COMMAIR failed to produce such evidence as demonstrated below.

The sophisticated user defense was recognized by the California Supreme Court in the

case of Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56. (“Johnson.”) The case

involved a plaintiff who was a trained and certified heating ventilation and air conditioning
(HVAC) technician. He was injured when heat from a welding torch he was using caused “R-
22".-a refrigerant gas in the air conditioning system he was working on-- to decompose into
phosgene gas, a hazardous toxic substance, Plaintiff sued American Standard, the
manufacturer of the air conditioning system, alleging both strict liability and negligence, with
each cause of action grounded in a claim that the manufacturer failed to provide adequate
warning of the hazard posed by the heating of the R-22 gas. The Johnson court upheld the trial
court’s grant of summary judgment based on a factual determination that plaintiff had been a
sophisticated user with respect to the refrigerant gas and a legal holding that “[a] manufacturer
is not liable to a sophisticated user of its product for failure to warn of a risk harm or danger if

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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT COMMAIR MECHANICAL
SERVICES'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION-

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10

the sophisticated user knew or should have known of that risk harm or danger.” (Id., at 71,
emphasis added.)

Johnson of course recognized an alternate means of establishing status as a sophisticated
user-- the “should have known standard.” (Id.) But defendant likewise failed to produce
evidence sufficient to demonstrate that plaintiff “should have known” that there were health
hazards associated with asbestos generally or, more particularly, that plaintiff “should have
known” that the fireproofing defendant handled and disturbed was hazardous.

The facts of Johnson provide useful illustrations of how it can be demonstrated that a

product user should have known of the hazards of a product. The evidence in Johnson revealed

that the plaintiff was required to have been certified by the EPA and that the EPA required
certified HVAC technicians to understand the decomposition products of refrigerants under
high temperatures. In addition the court noted that the study guide that comprised part of an
HVAC technician’s training contained specific information that refrigerant in contact with high
heat can form dangerous substances. Moreover, there was evidence that the Material Safety
Data Sheets (“MSDS”) for R-22 gas-which plaintiff acknowledged having received and
read—contained explicit warnings that heating the material could lead to the release of phosgene
gas. Finally, the court noted expert testimony, apparently undisputed, that there was wide
knowledge among HVAC technicians that when R-22 is heated it can release phosgene gas.

Defendant here failed to make an evidentiary showing commensurate with any of the
foregoing examples. There was no showing that plaintiff was required by any agency or entity
to have any understanding of the hazards associated with the materials with which he worked.
There was no evidence that MSDS sheets were ever provided to plaintiff at any relevant time
nor any evidence that plaintiff ever received any information by any other means advising him
of health hazards associated with asbestos.

Nor did defendant offer other evidence, as was presented in Johnson, that hazards

concerning the product in question were well known among members of plaintiff's class. In
Johnson, in addition to evidence regarding training, testing, certification and distribution of

warnings via Material Safety Data Sheets, there was express testimony via declaration of a

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defense expert that “it was ‘widely known among HVAC technicians’ that when R-22 is heated
it can decompose into toxic substances including phosgene gas.” (Id., at 74.) Here however,
rather than making a showing that there was widespread knowledge of hazards on the part of
workers like plaintiff, defendant instead presented evidence purporting to show knowledge on
the part of a third party, the union with which plaintiff was affiliated.

Even accepting defendant’s premise that plaintiffs union had knowledge concerning
asbestos hazards as of at least 1957, defendant failed to demonstrate that the union’s knowledge
was conveyed to its rank-and-file in an effective way. Defendant did not demonstrate that the
union undertook to train, test, or certify its members regarding asbestos hazards. Defendant did
not show that plaintiff's union promulgated work rules addressing asbestos hazards or
negotiated contracts with plaintiff's employers mandating enforcement of safe asbestos
handling practices. The only evidence offered by defendant as to why plaintiff should be
deemed “sophisticated” is that the union sporadically—at the rate of approximately one article
per year—included material in its monthly magazine that spoke to the issue of health risks
associated with asbestos insulation. All but one of these articles were published during a time
frame before plaintiff had joined the union and began [allegedly] receiving the magazine.
Defendant failed to demonstrate how plaintiff, or others situated similarly to him, was to have
come to learn of information in articles he never had an opportunity to read.

D. THE UNION HAS NO EXPRESS DUTY TO PROVIDE FOR SAFETY IN
THE WORKPLACE

In Johnson, the Supreme Court emphasized that pursuant to various California Code
Regulations that employers are required to train and educate their employees about the
chemicals and dangers to which they may be exposed on the job. (Id, at 62.)

The dangers and risks associated with R-22 are noted on Material
Safety Data Sheets (MSDS's). (Cal.Code Regs., tit. 8. § 5194, subd.
(g)(1), (2).) The purpose of MSDS's is to inform those who may
come into contact with potentially hazardous chemicals about their
dangers. (See Cal.Code Regs.. tit. 8. § 5194, subd. (g).) Employers
are required to use the MSDS to train and educate their employees
about the chemicals and dangers to which they may be exposed on
the job. (See Cal,Code Regs., tit, 8. § 519, subd. (h).) Among other

things, employers are required to tell employees where they can find

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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT COMMAIR MECHANICAL
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the MSDS's, how to read them, how to detect the presence of
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But a union has no such obligation or duty.

There is no express duty of care a union owes to its members under a negligence cause
of action. (Steelworkers v. Rawson (1990) 495 U.S. 362, 372-373.) While unions do have a
duty of fair representation (Vaca v. Sipes (1967) 386 U.S. 171, 190), this duty does not
encompass an implied duty of care to furnish a safe workplace.

At most, a union may acquire such a duty if it expressly assumes responsibility for it
under a contractual arrangement with an employer. Only then do claims of negligence have any
possible merit. (International Brotherhood of Electrical Workers, AFL-CIO v. Hechler (1987)
481 U.S. 851, 861.) Additionally, the employee must have relied on that duty. (Rawson.

495 U.S. at 363.) In the absence of an express assumption and reliance, a negligence claim will
not lie,

In International Brotherhood, a union member claimed her union breached a duty of care
to provide her with a safe workplace. The Supreme Court stated that the key inquiry for
ascertaining if a cause of action existed was to look at the contract and determine what duties
were taken on by each of the parties, and the scope of these duties. (International Brotherhood,
481 U.S. 851 at 862.)

In as much as defendant has failed to show that plaintiff knew the hazards of-asbestos,
or that he ought to have known because he received training in the subject, defendant’s
argument appears to be that plaintiff ought to have known because the union ought to have
trained him. Defendant offers no evidence that the union by its charter or contract with plaintiff
or by any other means was required to assure that plaintiff became sophisticated about the
hazards of asbestos. Plaintiff cannot be charged with constructive knowledge based merely
upon a judgment regarding what his union, in a perfect world, ought to have done.

Mt
MW

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