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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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                                BRYDON
HuGO & PARKER
138 MAIN STREET
20" FLOOR
San Francisco, CA 94105.

Edward R. Huge [Bar No. 124839]
P.M. Bessette [Bar No. 127588]
Josette D. Johnson [Bar No. 135977]

BRYDON HUGO & PARKER ELECTRONICALLY
135 Main Street, 20th Floor

San Francisco, CA 94105 Sup JE I - E De ja,
Telephone: (415) 808-0300 County of San Francisco

Facsimile: (415) 808-0333
Email: service@bhplaw.com MAY 03 2013
Clerk of the Court

Attorneys for Defendant BY: CAROL BALISTRERI
SWINERTON BUILDERS Deputy Clerk

SUPERIOR COURT - STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION

ROBERT ROSS and JEAN ROSS, (ASBESTOS)

Case No. CGC-09-275731
Plaintiffs,

vs. REPLY TO PLAINTIFFS’ OPPOSITION TO

SWINERTON BUILDERS’ MOTION FOR

C.C, MOORE & CO. ENGINEERS, et al, | SUMMARY JUDGMENT, OR IN THE

ALTERNATIVE, SUMMARY

Defendants. ADJUDICATION

Date: May 9, 2013

Time: 9:30 a.m.

Dept: 503

Judge: Hon. Teri L, Jackson

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

Swinerton Builders (’Swinerton”) hereby submits its reply to plaintiffs’
opposition to Swinerton’s motion for summary judgment.

In opposition to Swinerton’s motion for summary judgment, plaintiff claims that
Johnson v. American Standard (2008) 43 Cal,4* 56, does not apply to a negligence cause of
action, but even if it did, Swinerton has not shown plaintiff's individual sophistication
regarding asbestos, such that Johnson should not apply, Neither argument is correct.
Under Johnson, Swinerton is not required to show plaintiff's individual, subjective level
of sophistication, Rather, Swinerton need only show the subjective sophistication of the

1

REPLY TO PLAINTIFFS’ OPPOSITION TO SWINERTON BUILDERS’ MOTION FOR SUMMARY
JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATIONBRYDON
Huco & PARKER,
135 MAIN STREET
20" FLooR
San Francisoo, CA 94108

members of plaintiff's trade - asbestos workers. Moreover, Johnson explicitly states that
it applies to negligence causes of action.

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

Plaintiffs argue that Swinerton has failed to show that Robert Ross was a
sophisticated user of asbestos. This argument ignores the testimony of Robert Ross
wherein he admitted to being a member of Asbestos Workers Local 16, to attending
union meetings, to receiving the Asbestos Workers magazine, and to wearing a mask
throughout his career. Regardless, it is beyond dispute that in Johnson, the Supreme
Court adopted an objective standard in determining whether the plaintiff possessed
sufficient knowledge to qualify as a “sophisticated user.” (Johnson v. American Standard,
Ine. (2008) 43 Cal.4* 56, 71.) Thus, it is not the knowledge of the individual that matters,
but rather the knowledge of the trade or group to which the individual belongs that
determines the application of the sophisticated user defense. The focus of inquiry is
“whether the danger in question was so generally known within the trade or profession
that a manufacturer should not have been expected to provide a warning specific to the
group to which [the plaintiff] belonged.” (Johnson, supra, 43 Cal.4" at 74.) Here, there is
no doubt that Robert Ross himself, and the union to which he belonged, Local 16, were
sophisticated users of asbestos who were fully aware of the dangers of exposure to

asbestos.

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

Plaintiffs contend that even if the sophisticated user defense applies, it is limited
to the strict liability/failure to warn cause of action, which they have agreed to
dismissed. Put another way, they argue that Johnson should apply only to
manufacturers of products, and not contractors. Plaintiffs are wrong. A fundamental
element of any cause of action for negligence is the existence of a legal duty of care

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

2

REPLY TO PLAINTIFFS’ OPPOSITION TO SWINERTON BUILDERS’ MOTION FOR SUMMARY
JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATIONBRYDON

Huo & PARKER,
135 MAIN STREEY

Sea Francisco, CA 94305

duty are legal questions for the court. “[D]uty’ is not an immutable fact of nature but
only an expression of the sum total of those considerations of policy which lead the law to
say that the particular plaintiff is entitled to protection.’” (Campbell v. Ford Motor
Company (2012) 206 Cal.App.4 15, 26 [emphasis in original].)

The Johnson court explained that it is the policy of California that, "[I|ndividuals
who represent that they are trained or are members of a sophisticated group of users are
saying to the world that they possess the level of knowledge and skill associated with
that class." (Johnson, supra, 43 Cal.4* at 71.) Thus, anyone in the "world" should be
absolved from providing a warning to a member of the sophisticated group. Otherwise,
under plaintiff's theory, the product's designer and manufacturer, which incorporated
the asbestos, has no duty to warn, while the law would impose such a duty on a person
performing a service by installing controls. Under Johnson, such is not the law. The
member of the sophisticated group, i.e., plaintiff - is deemed to have the same
knowledge in both situations, whether it be with respect to a product manufacturer or
with respect to a company like Swinerton installing piping for plumbing. It is the actual
or constructive knowledge of the plaintiff that is determinative, not the relation of the
defendant to the plaintiff.

Said another way, under Johnson it is the knowledge of the sophisticated user
group or trade that extinguishes any duty from a defendant to any member of the
sophisticated user group, the rationale being that each member is deemed to have all the
knowledge attributable to the group. To wit, whether plaintiff is working with an
asbestos-containing product from a manufacturer or working in proximity to work by
Swinerton, he is deemed to have the same knowledge in both situations. The effect of
that knowledge, i.e., there being no duty to warn, should not be affected by the actions
or status of the individual defendant. To say otherwise is to impose different duties on
different defendants irrespective of the fact that plaintiff's knowledge is the same in all
situations, which would only produce an unjust result,

Tn essence, plaintiffs argue that Swinerton employees should not have been doing

3

REPLY TO PLAINTIFFS’ OPPOSITION TO SWINERTON BUILDERS’ MOTION FOR SUMMARY
JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATIONBRYDON
HUGO & PARKER
138 MAIN STREET
20°" FL.00R
San Prancisoo, CA 94105

the job they were contracted to do, which allegedly included cleaning up the asbestos
containing materials brought to and installed at the job site by plaintiff and plaintiff's
employer. This argument is absurd on its face. Swinerton was not responsible for
bringing any asbestos materials to the job. That was the responsibility of plaintiff's
employer. Plaintiff worked with asbestos on a daily basis, exposing himself to asbestos
regardless of any action of Swinerton. Nothing that Swinerton could have said or done
would have altered the fact that plaintiffs own job put him into daily contact with
asbestos on the job sites. Thus, plaintiff assumed the particular inherent risk of working
with asbestos in his job as an insulator, a risk of which he was well aware, and
Swinerton owed him no duty of care. (See Knight v. Jewett (1992) 3 Cal.4® 296, 314-315
[By virtue of the nature of the activity and the parties’ relationship to the activity, the
defendant owes no legal duty to protect the plaintiff from the inherent risk of harm that
caused the injury.]; Herrle v. Estate of Marshall (1996) 45 Cal.App.4* 1761 [senile patient in
hospital owed no duty of care to nurse, who by the very nature of nurse’s chosen
profession, assumed the danger of violence by her patients].)

Accordingly, this Court should not be persuaded by any contention by plaintiff
that Johnson applies only to strict liability causes of action against manufacturers of

products. Based on the forgoing, Swinerton requests summary judgment be granted.

Dated: May 3, 2013 BRYDON HUGO & PARKER

By: _/s/ Josette D. Johnson.
Josette D. Johnson
Attorneys for Defendant
SWINERTON BUILDERS

4

REPLY TO PLAINTIFFS’ OPPOSITION TO SWINERTON BUILDERS’ MOTION FOR SUMMARY
JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATIONRoss, Robert & Jean
San Francisco County Superior Court Case No, CGC-10-275731

PROOF OF SERVICE

lam a resident of the State of California, over the age of 18 years, and nota
party to the within action. My electronic notification address is
service@bhplaw.com and my business address is 135 Main Street, 20 Floor, San
Francisco, ¢ alifornia 94105. On the date below, I served the following:

REPLY TO PLAINTIFFS’ OPPOSITION TO SWINERTON BUILDERS’ MOTION
FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY
ADJUDICATION

on the following:

BRAYTON PURCELL LLP
222 Rush Landing Road
Novato, CA 94945

Fax; (415) 898-1247

o” By transmitting electronically the document(s) listed above as set forth
on the electronic service list on this date before 5:00 p.m.

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

© By placing the document(s) listed above in a sealed envelope and placing
the envelope for collection and mailing on the date below following the
firm’s ordinary business practices. 1 am readily familiar with the firm’s
practice of collection and processing correspondence for mailing. Under
that practice it would be deposited with U.S. Postal service on the same
day with postage thereon fully prepaid at San Francisco, California in
the ordinary course of business. I am aware that on motion of party
served, service is presumed invalid if postal cancellation date or postage
meter date is more than one day after date of deposit for mailing in
affidavit.

o By placing the document(s) listed above in a sealed envelope designated
for Federal Express overnight delivery and depositing same with fees
thereupon prepaid, in a facility regularly maintained by Federal Express,
addressed as set forth above.

o By causing personal delivery of the document(s) listed above to the
person(s) at the address(es) set forth above.

I declare under penal of perjury that the above is true and correct.
Executed on May 3, 2013, at San Francisco, California.

Mabelene Valeros

PROOF OF SERVICE