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

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                2 PATRICIA G. ROSENBERG, SBN 154820. : one . -
Biden Sige Floor. oo BL ECTRONICALILY
San Francisco, CA 94108. . wn moe ee OFIL E DI
Telephone: 45. 788.6330. . DAS SE Se ip

JAMES N: SINUNU, SBN 62802, sos os :

JUNIPER BACON, SBN 2566870 os MAY 02 201
SINUNU BRUNI CLP ws Jon vitae -.Clerk ‘of the Court -
333 Pine Street, Suite 400.2000 MD WO BY: EDNALEEN JAVIER
San Francisco, CA 94104 : SLE eh Be ees Deputy slerk
Telephone: 415.362.9700... > . : : oS :

: jstoumus 415.362.9707

Attomeys for Defendant — a
MCCLURE ELECTRIC, INC...

"SUPERIOR COURT: OF THE STATE OF CALIFORNIA -
: crry AND COUNTY OF SAN FRANCISCO-UNLIMITED JURISDICTION :

‘Case No: -cac- 10- 275731.

‘DEFENDANT MCCLURE ELECTRIC,
~INC.’S REPLY TO PLAINTIFFS’
“RESPONSE TO DEFENDANT | ~
MCCLURE ELECTRIC, INC.’S
‘SEPARATE STATEMENT OF.”
UNDISPUTED FACTS. Ss

ROBERT ROSS and JEAN ROSS,

C.C, MOORE & CO. ENGINEERS; |
|| Defendants as Reflected on Exhibit 1
attached to the Summary | Comp! int
: herein a and DOES: 1-8500,

= Me 9, 2013

= Defendants,

a “Com Jaint Filed: December 17; 2010
Anal D ate: June 10, 2013 -

MCCLURE: ELECTRIC’s Tadispate
“Material Facts and Suppo: tine Evidence | 2 =
: Plaintiffs Robert Ross and. Jean Ross filed a 1 Undisputed

Plaine Ragas) and Supporting :
: : _Evidenee _ S

REPLY TO PLAINTIFAS RESPONSE TO DEFENDANT MCCLURE ELECTRIG ING ”S SEPARATE STATEMENT OF oP
UNDISPUTED MATERIAL FACTS IN SUPPORT OF ITS MOTION FOR SUMMARY. JUDGMENT. : aMCCLURE ELECTRIC’s Undisputed
Materiat Facts and Supporting Evidence
Complaint for personal injury for Robert
Ross's asbestos-related disease on
December 17, 2010, anda Second .
| Amended Complaint on May 16, 2011; -
MCCLURE ELECTRIC filed an answer to
Plaintiffs’ Second Amended Complaint on:
December. 28, 2011.

Plaintiffs’ Response and -d Supporting
: _Evidence _ .

| See Request for Judicial Notice, filed

concurrently herewith: Second ‘amended

Complaint, filed May 16, 2011, and Proof

| of Service of Summons and Complaint, |

> MCCLURE ELECTRIC, Inc.,. attached as. yo
Exhibit A to the Declaration of. Juniper *

Bacon mn (“Bacon T Decl. 2. . .

MCC sme Reply This fact remains undisputed.

| As against MCCLURE ELECTRIC, | Undisputed.
| Plaintiff asserts the following causes of. .

action: Negligence, Strict Liability, Loss, of.

Consortium, and Premises Owner /
Contractor ‘Liability. Sa

Second Amended Complain attached as.
. | Exhibit A to Bacon Decl. : :

MCCLURE’S Reply: This fact remains undisputed.

3. Generally, plaintifh claims that he was - Uap oo
"| exposed to asbestos as a result of his work. oe
as'an insulator from 1959. until 1993, at >
-» | numerous commercial and industrial. © -

: locations, Primarily i in Northern California,

Plaintiff's work history, 3 as Exhibit A to
_| Plaintiffs’ Second Amended Complaint, -
: attached as Exhibit A to Bacon Decl.”

MCCLURE'S Renlv: This f fact remains undisputea. BENE

- : 2 :
"RELY TO PLAINTS RESPONSE TO. DEFENDANT MCCLURE TLECTRIG) INC.’S SEPARATE STATEMENT OF ~
wees UNDISPUTED MATERIAL] FACTS IN SUPPORT OF Furs MOTION FOR SUMMARY JUDGMENT :MCCLURE ELECTRIC’s Undisputed
Material Facts and Supporting Evidence |." -
Prior.to his work as an insulator, plaintiff. | Undionuted:
claims that between February 1959 and
January 1960, he was exposed to asbestos.
as a result of his work as a warehouseman
_-| at a warehouse where he unloaded boxears..
| of asbestos-containing products; he also
| swept floors and delivered asbestos-
-. | eontaining materials to job sites. Plaintiff.
~|-elaims that he unloaded or delivered. ~
thermal insulation and insulating cement. .

Piaintiffs’ Response amd Supporting
: Evidence : :

Plaintiffs! responses to Standard Asbestos —
| Case Interrogatories, attached as Exhibit B.
: to Bacon Deci., at 8:11-9:9.-

MCCLURE’ S Reply: This fact remains uncirpated :

MCCLURE ELECTRIC propounded Undisputed.
special interrogatories and requests for’. oe
‘production of documents seeking all facts,
‘witnesses and documents in support of |
Plaintiffs’ claims against MCCLURE —

wed ELECTRIC. :

See generally, MCCLURE ELECTRIC’s

-'| Special Interrogatories and Requests for

Production of Documents to.Plaintiff,

| attached as Exhibits Cc. and D1 to Bacon .
Decl. .

REPLY TO PLAINTIFES RESPONSE'TO DEFENDANT MCCLURE ELECTRIG. INC. ’S SEPARATE STATEMENT OF >
mes _ UNDISPUTED MATERIAL FACTS IN SUPPORT OF TTS MOTION FOR SUMMARY JUDGMENT oS : . noe“MCCLURE ELECTRIC’s 5 Undisputed
Material Facts and Supporting Evidence
Plaintiff served amended responses to
MCCLURE ELECTRIC's Special -
Discovery on December 19,2012;
verifications to same were served 0 on
MS. January 3, 2013.

~ Plaintiffs Response and Supporting
: Evidence _

: Undisputed.

Plaintiffs’ Responses t to. MCCLURE -.

‘| ELECTRIC's Special Interrogatories

"| attached as Exhibit E to Bacon Decl.;
Plaintiffs’ Responses to MCCLURE ~

ELECTRIC's Requests for Production of

Documents attached as Exhibit F to Bacon.

| Decl.; and Plaintiffs' Verifications attached -

| as Exhibit G to Bacon Ded Se

MCCLURE'S Reply: This fact remains undisputed. ks

7 ‘As to MCCLURE ELECTRIC, Plainttis Undisputed that pains scovery :
claim that that Robert Ross was exposed to: | responses indicated that plaintiff ROBERT

asbestos as result of activities by.

location: the Mills Building in San.
Francisco, Che :

Plaintiffs’ ‘Amended Responses to.
MCCLURE ELECTRIC's Special ..

Exhibit E to Bacon Dec.

MCCLURE ELECTRIC at one job- :
“| one job site,: which Mr. ROSS believed at

Mr. ROSS recently reviewed the -
Interrogatory No. 1, at 1:27-28; attached as

| Montgomery Street, San Francisco,
| California. If the assertions he makes that

: then it must be a different building in

"| he described above. Mr. ROSS’s review of | :

“MCCLURE employees doing around him"
‘ata high-rise building in downtown San

ROSS was exposed to asbestos as result of ©
activities by MCCLURE ELECTRIC at

the time was the Mills Building.

declaration of Cary. Hedman, who is an
engineer at the Mills Building on 220.”

there is not and never has been any sprayon || -. :
fireproofing in the Mills building is true

downtown San Francisco that Mr. ROSS”
saw MCCLURE employees doing the. work

Mr. Hedman’s declaration ‘does not cause
him to change the testimony that he gave in
his deposition about the work that he saw

Francisco between 1967: and 1972. Mr.»

- AO eerie and Sy

REPLY. To. PLAINTIFES RESPONSE TO DEFENDANT. ‘MCCLURE ELECTRIC, INC.’S SEPARATE. STATEMENT OF
UNDISPUTED MATERIAL FACTS N SUPPORT OF Ts MOTION FOR SUMMARY. JUDGMENT-MCCLURE ELECTRIC’s Tndispated

Plaintiffs' Response and Supporting
: Material Facts and Supporting Evidence So

Evidence
how that building had that old, gray, finer >
material with fibers sticking out, spray-on.
; asbestos. fireproofing that MCCLURE and.
the other trades were scraping and shooting |
their hangers into. While it is 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 .

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

(Ross Decl, Exhibit B othe Arua Decl, :
: at 7) 4 :

MCCLURE E'S 5 Reply: 1 This fact r remains undisputed,

See MoCiure 's Evidentiary Objections, filed herewith:

Plana claim that MCCLURE . Undispaed i However Mr. ROSS; in his *
‘ELECTRIC eleciricians exposed to him ‘deposition testimony provides further detail |"
asbestos by disturbing previously sprayed’. about the physical appearance ofthe
“| asbestos-containing overhead fireproofing -.| asbestos-containing fireproofing he saw: .
| (that looked like small curd cottage cheese) | MCCLURE cenployest diatrbing i in his

~| while setting their pipe and:conduit at the | - presence, : oS
Mills Building between 1967 and 1972.

8.

: As he testified i in his deposition, | the:

Oh : Plaintiffs “Amended Responses to. | sprayon. fireproofing material that he saw.
eee : ‘MCCLURE ELECTRIC's Special’: =. | MCCLURE employees scrape and disturb
“22 “| Interrogatory No. 2, at 2:5-11; “attached as was an old, gray, finer material with fibers
oe _ | Exhibit E to Bacon Decl,; Relevant. sticking out. It was dry and dusty when
~23-11)-~-| portions of Robert Ross's Deposition ~:-| MCCLURE scraped or shot through that -
2a ‘Testimony, at 2362:6-8; 2362:14-15;- | fireproofing material. As he explainedin

attached as Exhibit H t to Bacon Ded. “oe | his deposition, based on his knowledge, —
: : aS / | experience and training, Mr. ROSS knows. |.
GSR that the fireproofing material MCCLURE a
_ | disturbed in his presence contained
asbestos because hei able to fo dieting

SO g
REPLY.TO PLAINTIFFS' RESPONSE TO DEFENDANT MCCLURE ELECTRIC, INC.’S SEPARATE STATEMENT OF
o _ UNDISPUTED MATERIAL FACTS IN SUPPORT OF TTS MOTION FOR SUMMARY JUDGMENT. aS as = .

| employees disturb asbestos-containing Sp: Piainatiy Response and Supporting

‘ : Evidence’ :
by. color, texture and smell the asbestos-_
containing fireproofing material from the :
non-asbestos variety.

MCCLURE ELECTRIC’s Undisputed
Material Facts and Supporting Evidence

“| (Ross Deposition, Exhibit At to the Acufia "|
Decl., at 2359:15-17, 2360:24-2361:1, 2
2360: 21-2362: 3. Ross Decl., Exhibit B to
{he Acti Dest a 6.) :

MCCLURE Ss Reply: This fact remains undisputed,

See MeClure! 'S Evidentiary Objections, filed herewith,

Plaintif testified that he worked for a total. Uiaiptd.
of ten man-days at the Mills Building

between 1967 and 1972, on a total of three
different jobs. ..

| Relevant portions of ‘Robert Ross's
Deposition Testimony, at 2349:19-2350:1;

2351:18-20; 2352:2-4; attached as Exhibit
Hto Bacon Decl.

MCCLURE'S Reply: This fact remains undisputed

10. “On ‘each of the three different ios, Plaintiff Undisputed.
: worked on ducts, :

Relevant portions of | Robert Ross’ 's
-. | Deposition Testimony, at 2352:7-9;
= attached as Exhibit H to Bacon Decl.”

MCCLURE'S Reply: This fact remains undisputed.

Plaintiff ‘estified that his job at the Mills : ‘| Undisputed. .
Building was to insulate pipe and duct for -|

air conditioning and heating, however, he.

could not recall what kind of! heating

-| system was at the Mills Building. -

i

| Relevant portions of Robert Ross’ 's
cee eee at 2350: 5-73,

. . 602.
REPLY TO. PLAINTIFES RESPONSE TO. TEFENDANT MOCLURE ELECT, INC'S SEPARATE STATEMENT. OF. .
* UNDISPUTED MATERIAL FACTS IN. SUPPORT OF rs MOTION FOR: SUMMARY. JUDGMENT - °MCCLURE ELECTRIC’s Undisputed. Plaintiffs’ Response and Supporting

Material Facts and Supporting Evidence | - Ee Evidence ”
2350: 10-14; 2350:17-22; attached as. ° re
Exhibit H to Bacon Decl. - Sos

MCCLURE'S Reply: This fact remains s undisputed

2. “Acooniing to plaintiff the ducting he | Undisputed.
worked on at the Mills Building was forced | 0 -

air heating, going to rooms to heat and cool
: the Tooms. ° : :

Relevant pottions of. Robert Ross's.
Deposition Testimony, at 2354:17- 25.
attached as Exhibit H to Bacon Decl.

< Plaintiff does not recall what floors he Undisputed.
oe worked. on, how. many ‘floors he worked on, |
| or what rooms he worked in, other than it
] Was."inside” the building a and that it was
: remodel work.

Relevant portions of Robert Ross’ 'S S
Deposition Testimony, at 2352: Se

| 2352:10-14; 2352:
: attached as | Exhibit H to Bacon Decl,

MCCLURE’S Reply: This fact remains a

14. Plaintiff does not know ifhe worked in the Undisputed...
new or the old part of the building, : : :

: ° Relevant portions of Robert Ross’ 'S
Deposition Testimony, at 2353:6-7; © S
“2353211; attached as Exhibit H to Bacon. .
_ Decl

MocLURE Ss Reply: This fact re remains ps undlaputed

‘AS. Plaintift saw. clectricians on. 1 every one of 24 Undisputed. however, to be eat Mi

RE REPLY 1O PLAINTIFFS RESPONSE TO DEFENDANT MCCLURE ELECTRIC. NC 5 SP ARATE STATEMENT OF mn

the ten days he was at the Mills Building, - | ROSS testified that he saw MCCLURE |
-| though he does not recall if they were the ELECTRIC employees on each of the: 10
_| Same electricians or different electricians. an total he was at that si site.

Se

UNDISPUTED MATERIAL FACTS IN SUPPORT OF T78, MOTION YFOR SUMMARY JUDGMENTMCCLURE ELECTRIC’s Undisputed Plaintiffs’ Respouse and Supporting
. Evidence

Materiat Facts and Supporting Evidence

Relevant portions of Robert Ross's" (Ross Deposition, Exhibit A to the Acufia
Deposition Testimony, at 2355:5-13;. : Decl., at 2355: 16. -25.)

attached a as Exhibit H to Bacon Decl.

MCCLURE *S Reply: This fact remains undisputed,
‘oa

16. Plaintiff saw MCCLURE ELECTRIC
electricians every day that he was at the.
: Mills Building. -- : :

: Relevant portions of Robert Ross's
4 ‘Deposition Testimony, at 2355:16-17;

2355:22; 2355:24-25; attached as Exhibit

H to Bacon Decl."

MCCLURE'S Repl ly: This, fact remains undisputed.

17. | MCCLURE ELECTRIC was working in|»
vs bathrooms, ‘hanging pipe on unistruts to
connect, the lights or Tuning to fixtures.”

Undisputed

Relevant portions of. Robert Ross' So
| Deposition Testimony, at 2356:1-12;
l attached as Exhibit H to Bacon Decl.

MCCLURE'S Reply: This fact remains andspatea, .

18. To hang pipe, MCCLURE ELECTRIC
hung unistruts with clamps from the ceiling
: with. rebar.’ .

2 Relevant portions of. Robert Ross's 's
 °| Deposition Testimony, at 2356:1-12;
| 2356:13-16; 2356:19-23; attached as
Exhibit H to Bacon Decl.

MCCLURE'S Reply: This fact ‘remains nlp SS

‘19. | Plaintiff. recalls that the ceiling ‘was cement,’
and that MCCLURE ELECTRIC goreped :
off fireproofing first and was shooting «

2 ste into the e ceiling. : 2

“REPLY TO PLAINTIFFS! RESPONSE TO DEFENDANT MCCLURE ELECTRIC, INC.’S SEPARATE STATEMENT OF
UNDISPUTED MATERIAL FACTS IN SUPPORT ‘OF ITS MOTION, FOR SUMMARY, JUDGMENT esMCCLURE ELECTRIC’s : Undisputed

Plaintiffs’. Response and Sepportng

Evidence

Material Facts and Supporting Evidence

Relevant portions ' of Robert Ross's. -
Deposition Testimony, at 2356:1-12;
2357:11-17; 2360:7-9; 2360:13-20;

attached as Exhibit H to Bacon Decl.

MCCLURE'S Reply: This fact remains undisputed.

2.

‘To. shoot the studs into the ceiling, wes
MCCLURE ELECTRIC used 2 a stud gun.

Relevant portions of Robert Ross's 's
Deposition Testimony, at 2357: 4-9;
attached a as Exhibit H to Bacon Ded.

MCCLURE'S Reply: This fact remains undisputed

- | Most of the time, MCCLURE ELECTRIC”
~| hung their pipe on unistruts, though

occasionally they tan it over another pipe

‘| ‘or over.a duct.

: Relevant portions of Robert. Ross! ‘Ss
~-| Deposition Testimony, at 2358: 8-14;

attached as Exhibit H to Bacon Decl.

Unis

CCLURE'S Reply: ‘This fact remains undisputed.

22.

] Plaintiff cannot Tecall how many times he ©
saw MCCLURE ELECTRIC shooting into.

BS the ceiling to hang unistruts._

Relevant. portions of. Robert Ross’ Ss.

Deposition Testimony, at 2358: 20-24;

: attached as Exhibit H to Bacon Decl.

Undisputed...

MCCLURE’S Reply This fact remains analsputed

2B.

Plaintiff does not know. when the =
fireproofing that he claims that MCCLURE
ELECTRIC disturbed was installed. - =

Undisputed but immaterial.

“Ashe testified in n his deposition, the.

: sprayon sepooing material that he saw.

9

2 REPLY TO. PLAINTIFFS RESPONSE TO DEFENDANT T MCCLURE ELECTRIC, INC § SEPARATE STATEMENT OF.

“UNDISPUTED MATERIAL, FACTS N SUPPORT. OF. its MOTION FOR SUMMARY JUDGMENT. .MCCLURE ELECTRIC’s Undisputed
Material Facts and Supporting Evidence

~ Plaintifis" "Response and Sapporing
ms Evidence -

| Relevant portions of Robert Ross's SS
| Deposition Testimony, at 2359:3-4;
oS 2359: 12-14; attached as Exhtbit Hf to

MCCLURE’S Reply: This fact ‘remains undisputed.
See McClure identiary Objections, filed herewith, “eS

~ bis deposition, based on his knowledge,

* >| disturbed in his presence contained :
oe asbestos because heis able to distinguish.
--“ by color, texture and smell the asbestos-

-| containing fireproofing ‘material from the :

‘| MCCLURE employees Scrape. and Sista : | Se
-| was an old, gray, finer material with fibers ©

sticking out. It was dry and dusty when
MCCLURE scraped or shot through that ° :
fireproofing material. As he expiained in

experience and training, Mr. ROSS knows Te
that the fireproofing material MCCLURE ~

non-asbestos variety.

- (Ross Deposition, Exhibit Ato the Acuta yo
| Deel., at 2359:15-17,-2360:24-2361:1,

2360: 21 -2362:3. Ross Decl., Exhibit B to.
the Acuiia Decl. at 15,6.)

24. Plaintiff does not ow the brand or:
- | manufacturer of. any. fireproofing type.
| material: that he claims that MCCLURE
: ELECTRIC disturbed. :

ms ‘Relevant portions of Robert Ross's 2
oS Deposition Testimony, @ at 2360: 4-6;
: attached as Exhibit Ho Bacon Dec

'| his deposition, based on his knowledge,

: ‘As he testified i in his deposition, the. es
_| sprayon fireproofing material that he saw.

os was an old, gray, finer material with fibers.

| MCCLURE scraped or shot through that |

Undisputed but immaterial

MCCLURE employees scrape and. disturb.

sticking out. It ‘was dry and dusty when :
fireproofing material. As he explained in.

"| experience and training, Mr.ROSS knows |

| that the fireproofing material MCCLURE. ||
‘disturbed in his presence contained — oye
asbestos beca ¢ he is able to distinguish

~ | by color, texture and smell the asbestos- | -

| non-asbestos variety.

containing fireproofing material from the 4

| ‘Ross Depot, Exhibit A bse Acuiia

"REPLY TOPLAS RESPONSE TO DEFENDANT. MCCLURE ELECTRIC, INC.’S SEPARATE STATEMENT:
SEES _UNDISPUTED MATERIAL FACTS IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT nhMCCLURE ELECTRIC’s Undisputed

Plaintiti Response and Supporting
Evidence.

Material Facts and Supporting Evidence

‘| 2360:21-2362:3. Ross Decl., Exhibit B to

Decl., at 2359:15- 17, 2360:24-2361:1,

MCCLURE'S Reply: This fact r remains ‘undiopat ed. :
See MoClure 's  Evidentiary. Objections filed herewith :

the Acufia Decl, at MMS. 6).

: Decl.

25. Plaintiff described material that he labeled. -

| as fireproofing at the Mills Building as as

SS being grey. and looking like oatmeal.
...| sprayon fireproofing material that he saw:

Relevant portions of Robert Ross's
Deposition Testimony, at 2359:15-17; -
2360:1-2; attached as Exhibit Hi to Bacon :

“<-|the old, asbestos-containing Prerootngs

‘| was an old, gray, finer material with fibers -

.| MCCLURE scraped or shot through that

_| disturbed in his presence contained

-| (Ross Deposition, Exhibit A to the Acufia x
-| Decl., at 2359:15-17, 2360:24-2361:1, :
“| 2360: 21-2362: 3. Ross Decl. » Exhibit B to.

: As a career insulator working with and

Casispated.

Ashe testified i in his deposition, the

MCCLURE employees scrape and disturb
sticking out. It was dry and dusty when -

fireproofing material. As he explained in - :
his deposition, based on his knowledge,
experience and training, Mr. ROSS. knows
that the fireproofing material MCCLURE

asbestos because he is able to distinguish
by-color, texture and smell the asbestos-- "|
containing fireproofing material from the
nomasbestos variety. -

the Acuiia Decl, atts, 6)

‘around ‘asbestos-containing materials on *
construction sites, Mr. ROSS has. come to -
learn and is able to differentiate between -

and new, non-asbestos containing...
fireproofing. ‘The older type of.
fireproofing that contained. asbestos hada a
finer consistency than the new fireproofing.
‘Additionally, the older asbestos-containing

i

Bispropfinn had fibers that stuck out of i it

REPLY TO PLAINTIFFS’ RESPONSE TO DEFENDANT MCCLURE ELECTRIC, INC.’S. SEPARATE STATEMENT OF
~ UNDISPUTED, | MATERIAL FACTS IN, SUPPORT, OF is | MOTION FOR: SUMMARY JUDGMENT: Tse“MCCLURE ELECTRICs Undisputed

- Plaintiffs’: Response and Sepporting
voy Evidence

Material Facts and Supporting Evidence

*| out described above contained asbestos a

-|1970s in San Francisco wherein that type: A
of fireproofing was used ‘throughout, i itlater |

~ : saw the old type of fireproofing being

oe confirmed on various different settings poe
| throughout his career, especially in the °° |]

oy to protect workers from exposure to

when viewed up.close, whereas the -
"| 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

‘because when he was at a job in the late -

required proper. asbestos abatement.
| removal, which he had later in his career.
‘become trained on.’ At that job, Mr. ROSS

abated and the new type of fireproofing
‘being applied. On that job, Mr ROSS -

learned how to differentiate between ©
| -asbestos-fireproofing versus the non-
asbestos type. That knowledge was

1980s when controls began to be instituted -

asbestos-containin; ig materials.

“| oss Decl., Exhibit B to the Acuiia Deo,

See MeClue 'S Evidentiary Objections filed herewith.

st6)
MCCLURE E'S Reply: : This fact remains undispated. oe

AA 26 | Although he personally never installed =
_| fireproofing, plaintiff believes that such :
| fireproofing material contained asbestos SE

because he feels that he knows the -

difference between asbestos fireproofing

| and non-asbestos repeating (he cited A

“ : ‘cole, texture, and smell).

‘Relevant portions of Robert Ross's.

oe sprayon fireproofing material that he saw

defendant’s argumentative statement,
which implies. that only those who have
personally installed fireproofing have.
foundation to opine as to the asbestos
‘content of that materi SORES

As he testified i in his deposition, the

& Deposition Testimony, at 2361.21. 1236055

AD

: MCCLURE —— scrape and sisturh

2 REPLY TO PLAINTIFFS RESPONSE 70 DEFENDANT MCCLURE ELECTING, INC.” 'S SEPARATE STATEMENT OF ©

- UNDISPUTED, MATERIAL, FACTS IN SUPPORT OF

Ts MOTION FOR: SUMMARY. JUDGMENT -

Tatbally unligated bit plans anette a-MCCLURE ELECTRIC’s. = Undisputed
Material Facts and Supporting Evidence |

Plaine Response and {Supporting 5
Evidence

attached as Exhibit Eto Bacon Decl.

’| as an old, gray, finer material with fibers :

. disturbed in his presence contained |.
'| asbestos because he is able to distinguish *

o non-asbestos variety.

"| that contained asbestos had a finer
| consistency than the new fireproofing.
“| Additionally, the older ashestos-containing ©

-| fireproofing had fibers that stuck out of it

“| ROSS did not see this later type of |

because when he was at ajob in the late —

: of fireproofing was used throughout, it later
‘required proper asbestos abatement ©:

{saw ‘the old pes of. fireproofing bein

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

by color, texture and smell the asbestos-.-.
containing fireproofing material from the

(Ross Deposition, Exhibit A‘ to the ‘Acuita .
Decl., at 2359:15-17, 2360:24-2361:1,
2360:21-2362:3. Ross Decl., Exhibit B to
the Acufa Decl. at #5, 6.) we

‘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

when viewed up-close, whereas the.
asbestos-free fireproofing did not.’Mr.

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 ©

1970s in San Francisco wherein that type

removal, which he had later in his career
become trained on. At that job, Mr: ROSS ~

Boe

REPLY TO PLAINTIFFS’ ‘RESPONSE TO DEFENDANT, MCCLURE ELECTRIC, INC. 5 SEPARATE STATEMENT OF:
UNDISPUTED ‘MATERIAL FACTS, IN. SUPPORT OF ns. MOTION FOR, SUMMARY. JUDGMENT os *~ Plaintiffs' Response and | Supporting

* Evidence — :
-| abated and the new type of fireproofing
being applied. On that job, Mr ROSS ©
learned how to differentiate between
asbestos-fireproofing versus the non-
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 :
: ssbeston-contaizing materials.

~.MCCLURE ELECTRIC’s, Undisputed
Material Facts ‘and Seppore Evidence

(Ross Decl., Exhibit to the Acufia Deel, .
: 16) :

MCCLURE'S Reply: This fact remains undisputed.

See MoChure' 'S Evidentiary Objections, filed herewith.

22. Plaintiff does not know the names of any = Undisputed.
MCCLURE ELECTRIC employees he:
‘dlaims worked at the Mills Building and he.
‘does not recall speaking with any. of them.

Relevant portions of Robert Ross’ S.
Deposition Testimony, at 2358:2-7;
2362:17-19; attached as Exhibit H to. -
Bacon Decl.

MCCLURE'S Reply This fact remains undisputed, -

28. Plain does not fecal any.job other than Undisputed # that Mr. ROSS only id "identified :

the Mills Building where he saw MCCLURE ELECTRIC at one job site;
MCCLURE ELECTRIC: at the jhe with -_| which Mr. ROSS believed at the time was:
: we the ‘Mills Building. -
Relevant portions of Robert Ross's Be Mr. ROSS recently r reviewed the Me
Deposition Testimony, at 2362:20- -2363:3; declaration of Cary Hedman, who is an.
-| engineer at the Mills Building on 220°

attached as Exhibit H to Bacon Decl. oe :
TOEnATS OEE SS : “| Montgomery Street, San Francisco,
| California. If the assertions he makes that.

there i is not and never t has been any spray

ge

-REPLY TO: PLAINTIFFS RESPONSE: TO DEFENDANT MCCLURE ELECTRIC, INC.’S SEPARATE. STATEMENT OF
DISPUTED MATERIAL Facts: IN SUPPORT: OF MTs. MOTION FOR, SUMMARY JUDGMENT: YMCCLURE ELECTRIC’s Undisputed
Material Facts and Supporting Evidence

Piaintiti Response and Supporting.
= Evidence —~

|| on fireproofing 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

. | him to change the testimony that he gave in
"| his deposition about the work that he saw
MCCLURE employees doing around him
at a high-rise building in downtown San
-_| Francisco between 1967 and, 1972. Mr.
| ROSS distinctly remembers that job and.
_| how that building had that old, gray, finer’
| material with fibers sticking out, spray-on —
asbestos fireproofing that MCCLURE and
the other trades were scraping and shooting
their hangers into. While it is 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 i in
downtown San Francisco substantially ©.
similar to the Mills Building, Mr. ROSS .-
-| remains certain that he saw MCCLURE :
employees disturb asbestos-containing

and 1972.

| (Ross Decl., Exhibit Bto the Agata Decl.,
at 1 7. )

MCCLURE 's Reply’ This fact remains undisputed

‘See McClure! Ss Bvidentiary Objections, filed herewith,

29, Plaintiff testified that he does not imow of Uaapid
any documents that would refresh his.
>| recollection tegarding MCCLURE :
: BLECTRIC._ : : .

Relevant portions of Robert Ross’ ‘Ss
: : Deposition = at 2364: 9-12;

“as.

REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANT MCCLURE ELECTRIC, INC’S. SEPARATE ‘STATEMENT OF. .
“UNDISPUTED, MATERIAL: FACTS, IN SUPPORT! ‘OF ITS MOTION FOR SUMMARY JUDGMENT

Mr. Hedman’ 's declaration. does not cause I -

fireproofing around him on between 1967 :~ MCCLURE ELECTRIC’s Undisputed
‘Material Facts and Supporting Evidence

-Plaintifis' Response and Supporting :
Evidence *

attached as Exhibit H to 2 Bacon Decl.

MCCLURE'S Repl This fact remains undisputed. _

. ‘When asked if there are any persons who

might refresh his memory regarding

_| MCCLURE ELECTRIC, plaintiff testified —

that Robert Cantley came by one day on:
one of the jobs at the Mills Building, —

‘discovery asking for all witnesses in
support of | his claims against MCCLURE .
ELECTRIC, Plaintifis do not identify Mr,
Cantley as asa witness. © ‘

Relevant portions of Robert Ross! S
Deposition Testimony, at 2363:4-6;
2363:16-2364:5; attached as Exhibit H to

~| Bacon Decl; Plaintiffs Amended -

Responses to MCCLURE ELECTRIC’s,

: -| Special Interrogatories, No. 5, attached as ~

Exhibit Eto Bacon Decl. at: 18: 24-28.

“| Undisputed. 0°

though he cannot recall when or. which job. |
Further, in response to subsequent written. |

MCCLURE'S Reply This fact remains undispu ted. :

a

newly served defendant :

‘Relevant portions of Plaintiff Jean Ross's S

‘Deposition Testimony, at 8:16-9:7; - a
“_ as Exhibit i to Bacon a“ .

Jean ‘Ross stipulated that she will not offer |
“| any product identification testimony as to
“| MCCLURE ELECTRIC or any « ‘other

Undisputed.

| MCCLURE'S Reply This fact remains undispated.

32.

‘Several onthe after plaintiffs deposition
concluded, in response to an | interrogatory.
request for all witnesses in support of his. :

Undead

a8 | claims against MCCLURE ELECTRIC,

de

REPLY. TO PLAINTIFFS RESPONSE TO DEFENDANT MCCLURE ELECTRIC, INC’S SEPARATE ESTATEMENTOF

UNDISPUTED MATERIAL FACTS IN SUPFORT: OF. Hs MOTION FOR SUMMARY: JUDGMENT aes“MCCLURE ELECTRIC’s Undisputed
Material Facts and Suppo. Evidence

Di

. Plaintiffs’ Response and Supporting
2 : Evidence : MS

.| Plaintiffs identified only Robert and Jean |.

Ross.

Plaintiffs! Amended Responses to’
MCCLURE ELECTRIC’s Special

: Interrogatories, No. 5, attached as. Exhibit.

|E to Bacon Decl.

MCCLURE'S Reply 1 This fact remains undisputed.

33.

‘Although asked; Plaintiffs’ Responses to.
MCCLURE ELECTRIC’ | Special .
Interrogatories and Requests for Production.
of Documents do not identify any specific
documents supporting Plaintiffs' contention
that he was exposed to asbestos by
MCCLURE ELECTRIC. ~

Plaintiffs “Amended Responses to.
MCCLURE ELECTRIC’s Special
Interrogatories, No. 7, attached as Exhibit
‘Eto. Bacon Decl.; Plaintiffs! Responses to.

“| MCCLURE ELECTRIC’s Requests for

__ | Exhibit F to Bacon Decl: -

Production of Documents attached as

: Disputed. Defendant mischaracterizes

S between asbestos-containing ‘versus non-
-| asbestos- containing fireproofing. (Ross

“| at-2349:19-2350°11, 2352:2-4, 2355:8-

plaintiffs’ responses to interrogatories,
which provided a description of the various.
documents that support plaintiffs’.
contention that ROBERT ROSS was
exposed to.asbestos by MCCLURE
employees. Among the documents
identified was Mr. ROSS’s deposition |:
transcripts. wherein he testified about his

'| work around MCCLURE employees at one | *.

building between 1967 and 1972, how they:
disturbed the asbestos-containing spray-on..||
fireproofing, and how he learned during kis |
career as an insulator how to distinguish ||

Deposition, Exhibit A to the Acufia Decl.,
2357:17; 2358:8-14, 2358:25- 2359:4,

2359:15-17, 2360:24-2361:1, 2360:21- 1
| 2362:3.) :

‘McClure, this fact i ‘As ‘undisputed.

| MCCLURE ‘S. Reply: ‘Defendant  obicets to. ‘the admissibility of testimony regarding the

composition’ of. fireproofing: | Irrelevant (Evid. Code, §§ 210,350, 352); Lacks foundation; ve
Outside e Scope of Eopett ‘Opinion Evid. Cote § 801); Improper Opinion vid. Code #8 am
803).

As plaintiffs} have not put forth any. y relevant, compeieal evidence which » raises a triable:
issue of disputed fact regarding Plaintiff's alleged exposure to asbestos attributable to. -

| See McClure’ 's deny Objestions, filed herewith.

7

“REPLY-TO, PLAINTIEFS RESPONSE TO DEFENDANT MCCLURE ELECTRIC, INC.’S. SEPARATE STATEMENT OF...
: : UNDISPUTED | MATERIAL. FACTS) IN SUPPORT OF ITS. MOTION FOR SUMMARY JUDGMENT :Material Facts and. Su upportin 2 rting Evidence

MCCLURE ELECTRIC’s Undisputed °

Plaintt Response and Sepporting
_Evidence _

34. Though Plaintiff Faaely listed. -
numerous documents as responsive to.
MCCLURE ELECTRIC’s written
discovery, no documents ‘were actually

produced. .

‘| Bacon Deal at No. 11

Dane Plaintiffs object:to ‘defendant’ so)

mischaracterization of, plaintiffs’ discovery
responses. Plaintiffs’ response to the -
document production requests expressly

-| stated that plaintiffs. will produce the —

documents identified at defendant’s Tequest
and expense. There is 0 evidence before

alee SEERA Sa SELES the Court that defendant did, in fact make a
: ves Se request. Plaintiffs never refused to Benuee
adn oe SAS the documents identified in plaintiffs’ :
oa os : oo onses. :
9 : “MCCLURE'S Reply: Defendant abjects to to the admissibility of testimony regarding the.
i0|| | composition of fireproofing: Irrelevant (Evid. Code, §§ 210,350,352); Lacks foundation;
o Outside Scope of Expert Opinion (Evid. Code, § 801); feprepe Opinion Evid. Code 58 800,
1 803). :

As plaintiffs have not pat forth any. ry relevant, competent evidence which raises a triable
issue of disputed fact regarding Plaintiff's alleged, exposure te asbestos attributable too.
McClure,, this facti ‘is. undisputed. :

See MoClure' ‘s Evidentiary Objections, filed herewith, a

“16. 3. Cary] Heiman i is the Chief Engineer at the. Undisputed.
: ~ | Mills } Building and he has worked at the
ah Mills Building for approximately thirty
“ae (30) years, for fifteen (15): years asa’
~ eS Building Engineer Gourneyman) and as the
ag : Building’ Ss Chief Engineer since 1998. :
- 20. - : . Declaration of. Cary) Hedman (Heiman.
nL [Dest 92.
“22 Mcc LURE'S Reply: This fact remains undisputed,
“3 || 36) The Mills Building was built nive [oasis
24 phases; all of the sections are similar with | ©
ms ue slightly. different pee of ‘construction. . :
25° :
‘Declaration of Cary Hedman (Hedman
26. Decl.” :
S Del45.
“27

S REPLY TO PLAINTIFFS: RESPONSE TO DEFENDANT MCCLURE ELECTRIC, INC.’S SEPARATE STATEMENTOF™
CUNDISFUTED, MATERIAL FACTS IN SUPPORT. OF iS MOTION R SUMMARY JUDGMENT :: MCCLURE ELECTRIC’s Undisputed
| Material Facts and Supporting Evidence |

"Plaintiffs Respause and Sepporing “
voles Evidence .

MCCLURE'S Reply: This fact remains ns undisputed.

37. The original building slab i is hollow clay. : Cndipuiod
‘| tile with a non-asbestos finished plaster”
ceiling application. that provides. .
‘fireproofing for structural steel.

: ‘Declaration of f Cary Hedman (‘Hedman
Decl”) 6.

MccL URE'S. Rely This fact remains snispted. oe

~| Building’s mstruction is concrete slab
with additional concrete encasing exposed -
steel for: fireproofing... wa

Undisputed.

Declaration of. Cary Hedman (Heiman
Decl.”) ¢’ 7.

MCCL LURE'S Reply: This fact remains undisputed. Ss

30. “Since 1987, ‘Building Engineer Cary, : Tadispuiod :
“<:| Hedman has been directly involved with all.| :

--| construction: projects and he has not seen or
eS encountered any asbestos containing - 2

-| fireproofing, | or-spray-on fireproofing of.
any kind at The Mills Building. oes

Declaration of Cary Heiman Hedman oh
Deel") 48. oe

‘MCCLURE ‘Ss Repl This fact remains undisputed.

40. | As the Building’ $ Engineer, Me “Hedman ‘Undisputed
has worked or overseen n construct ion for.
every space in the building.”

: Declaration of Cary Hedman (‘Hedman -
{Deel 92. oS .

MCCLURE E'S le This fact remains undlis pated.
19.

REPLY TO PLAINTIFFS" RESPONSE TO DEFENDANT: MCCLURE. ELECTRIC INC’S. SEPARATE STATEMENT. ‘OF.
UNDISPUTED MATERIAL FACTS IN SUPPORT OF. TS MOTION FOR SUMMARY JUDGMENT"MCCLURE ELECTRIC’s Undisputed.

Material Facts and Supporting Evidence.

Piaintifis Response and Supporting”

41.
~~] has reviewed plans for the Mills Building ©

4 Deak 14.

As the Building” 's : Engineer, Mr. Hedman ~

going back to its original 1892.

| construction. Based on the plans and.

extensive personal observation, there is not, |
and never has been, any asbestos.
containing or spray-on fireproofing used —

: anywhere i in The Mills. Building,

Declaration of Cary Hedman (Hedman.

«Evidence _

Tada

| Mr. ROSS secant reviewed the

declaration of Cary Hedman, who is an oe
engineer at the Mills Building on 220-
Montgomery Street, San Francisco, -

Califomia. If the assertions he makes that |
_| there is not and never has been any. sprayon 5 ~

fireproofing in the Mills building i is true

“| then it must be a different building i in’

downtown San Francisco that Mr. ROSS

_| saw MCCLURE employees doing the work. 8 oS
‘| 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.

MCCLURE employees doing around him
at a high-rise building in downtown San

- | Francisco between 1967 and 1972. Mr. ©
“: FROSS distinctly. remembers that job and.

“| how. that building had that old, gray, ‘finer: J}:
material with fibers sticking out, spray-on |

asbestos fireproofing that MCCLURE and

_-| the other trades were scraping and shooting |
’| their hangers into. While it is possible that =

Mr. ROSS may have gotten the name of the

building wrong at his deposition, given that

che worked in hundreds of different jobsites,

“| many of which were high- ie balding
- | downtown San Francisco substantially: :
| similar to the Mills Building, Mr. ROSS.

remains certain that he saw MCCLURE

“| employees disturb asbestos-containing
oS ‘fireproofing around him on between 1967

‘Ross Decl.

xii te Aca Del,
ae :

MCCLURE’ S. Ren This fact remains ns undisputed,

“oe

2 REPLY YT} PLAINTIFRS RESPONSE TO DEFENDANT MCCLURE ELECTRIC, INC.’ 5 SEPARATE STATEMENT OF
“UNDISPUTED, MATERIAL FACTS IN. SUPPORT OF. ITS MOTION. FOR SUMMARY. JUDGMENTMCCLURE ELECTRIC’s Undisputed.
Material Facts and Supporting Evidence

“Plaintity Response and Supporting
: ~ Evidence :

See McClure’ S Evidentiary Objections, filed herewith. -

a There is no.central modern HVAC system
- | in the Building. Heating is provided by
° | steam for radiators and ventilation is from
© operable windows, and as such, there is no
duct work for these systems in any section
of the Mills Building. :

Declaration of Cary Hedman (“Hedman :
Deel") 10. :

MCCLURE'S Reply: This fact remains undisputed.

See McClure! 'S Evidentiary Objections, filed herewith.

Undisputed. See laine? response to
| Statement No, 41, above. Se

-| some.renovations and Mr. Hedman took

: photographs of the ceilings of some of .
those opened spaces to illustrate that the
ceilings in all parts of the building were
either concrete or lath and plaster without
any. Sprayed fireproofing, :

: Declaration of Cary Hedman (lean
| Decl.”) § 11, and photographs

os ‘attached as Exhibits 1 and LAto LE.
~ thereto. :

43.| The Mills Building is currently undergoing ‘Undisputed, however plaintiffs object to
-| Exhibits 1 A-1E to the Hedman declaration

| Evidentiary Objections to McClure Electric

as inadmissible hearsay. See Plaintiffs’

Inc.’s Motion for Summary Judgment, or in
the Altemative, Summary Adjudication. °-

MCCLURE'S Repl: This fact remains undisputed.
‘See MoCiure! s Evidentiary Objections, filed herewith.

44. Mr Hedman also.took a photograph ofa. a
San Francisco Chronicle news article, dated.
October 13, 1896, found in the Mills
Building law library, which describes the

_| construction of the oldest part of the Mills.”
Building, including how the hollow terra ©

Undisputed} however pana Sbjetto to :
Exhibits 2, 3,4 to ‘the Hedman declaration
as inadmissible hearsay. See Plaintiffs’

Evidentiary Objections to McClure Electric
Inc.’s Motion for Summary Judgment, or in
_| the Alternative, Summary Adjudication.

Wo

: “REPLY. TOPLAINTIFS RESPONSE TO DEFENDANT MCCLURE ELECTRIC, INC.’S SEPARATE | STATEMENT OF.
UNDISPUTED MATERIAL FACTS N SUPPORT OF TTS MOTION FOR SUMMARY: JUDGMENTMCCLURE ELECTRICs Undisputed ~-Plaintiffs" Response and Supporting
[Material Facts and Supporting Evidence : Evidence _ mea
Declaration of Cary Hedman (‘Hedman © Yes oie
Decl.”) 412, and photographs
attached as. Exhibits 2, 3 and 4, thereto.

MCCLURE'S Reply: This fact remains s undisputed. 5

4B. MCCLURE ELECTRIC requested! that Disputed. Defendant's argumentative.
-| Plaintiff state all facts in support of : statement is not fact but rather a bold.
| Plaintifis' Cause of Action for ‘Negligence mischaracterization of plaintiffs’. discovery.
“as against | MCCLURE ELECTRIC; BEES responses, which are not factually devoid.
Plaintifis' response reiterates the | : :
information in plaintifis' Tesponses to.
standard asbestos interrogatories, followed
‘by over ten pages of generic documents,”
| however, plaintiffs present no admissible
eee evidence which supports their claims.

oe MCCLURE ELECTRIC’s Special
oS Interrogatory No. 14, attached as Exhibit Cc
~.| to:Bacon Decl; Plaintiffs' Amended
‘| Responses to MCCLURE ELECTRIC’s
Special Interrogatory, No. 14; at 82:23--
| 98:25; attached as Exhibit E to Bacon eS
Decl. See

MCGLUBES et ee :

803).

McClure, this fact i is z disputed.

‘See! McClure’ s Evidentiary | Ol jections, filed herewith,

composition of fireproofing: “Irrelevant (Evid. Code, §§ 210,350, 352); Lacks foundation;
Outside Scope: of Expat Crinion Guid. Code, § 801); imgrpe Opinion Evid Code 8 800,

As plaintiffs have not put forth any. relevant, competent evidence which raises a triable

issue of disputed 1 fact regarding Plaintifi's alleged exposure to asbestos attributable to.

46.) “MCCLURE ELECTRIC Tequested that This cause “ofa action has boca dismissed
Plaintiff state all facts in support of © oe therefore this i issue is moot.
| Plaintiffs’ ‘Cause of Action for Strict o

‘| Liability as against MCCLURE :
ELECTRIC; Plaintiffs’ Tesponse reiterates.

a the information in laiutifiy ree s to.

ae "REPLY TO PLAINTIFFS" RESPONSE 10 ) DEFENDANT: MCCLURE ELECTRIC, INC.’S. SEPARATE, ‘STATEMENT OF

“UNDISPUTED MATERIA) CTS. IN ‘SUEPORT OF mts MOTION FOR SUMMARY JUDGMENT.MCCLURE ELECTRIC’s Undisputed
|: Material Facts and Supporting Evidence

Evidence

“| standard asbestos interrogatories, followed
by over:ten pages of, generic documents;
however, plaintiffs present no admissible”

: evidence which supports their claims. OS

y MCCLURE ELECTRIC’s Special :

~ | Interrogatory No. 15, attached as Exhibit Cc

| to Bacon Decl.; Plaintiffs’ Amended

Responses to. MCCLURE | 'ELECTRIC’s

“| Special Interrogatory, No. 15; atteched a as”
: Exhibit E fo Bacon Decl. =

‘MCCLURE: “S Reply: McClure recently received amine, offer to dismiss this cause of. :

action and has tulnnitted the diomissal form te

the court. Thus, this fact is undisputed. :

47.

MCCLURE ELECTRIC requested that
| Plaintiff state all facts in support of
| Plaintiffs' Cause of ‘Action for Loss of:

-| Consortium as against MCCLURE -.

Paina Response and Supporting | 2
\

Disputed. Defendant’s argumentative
statement is not fact but rather a bold.

| mischaracterization of plaintifis’ discovery

ws Fesponses, ‘which are not factually devoid. :
“> ELECTRIC; Plaintiffs’ response reiterates : oe
--| the information in plaintiffs" responses to
“| standard asbestos interrogatories, followed
by over ten pages of generic documents, ~
however, plaintiffs present no admissible .
evidence which supports thei claims.

S MCCLURE ELECTRIC’ s Special’ eRe
"| Anterrogatory No.’ 16, attached as Exhibit C “os
-| to Bacon Decl.; Plaintiffs Amended ©
“| Responses to MCCLURE ELECTRIC’s:
“| Special Interrogatory, No. 16; ‘attached as

803).

‘issue of disputed fact regarding. Plaintiff's a ateeet exposure to asbestos attributable to.

eatin Eto Bacon Deol.

MCCLURE'S Reply: Defendant objects to. the admissibility of testimony repiding the
composition of fireproofing: . Irrelevant vid. Code, §§ 210,350, 352); Lacks foundation; .
Outside Scope of Expert Opinion rd, Code, § 801); Impreps, Opinion, vid Code i 800, :

As plaintiffs have not : put. fe es relevant, competent evidence which raises a triable 4

MeClare, this fact i is is undisputed. _ “ .

ay "REPLY TOFLAINTIFRS ‘RESPONSE TO DEFENDANT MCCLURE ELECTRIC, INC.’ 5 SEPARATE STATEMENT OF oe

_ UNDISPUTED MATERIAL FACTS. IN. SUPPORT. ‘OF iTS ‘MOTION FOR ¢ SUMMARY JUDGMENT TEESMCCLURE ELECTRIC’: 5 Undisputed

Plaintiffs’ Response and Supporting
4 Material Facts and Supporting Evidence : Lens

See MoCiure! s Evidentiary Objections, filed herewith.

46. MCCLURE ELECTRIC requested that -. | Disputed. Defendant’s argumentative
| Plaintiff state all facts in support of... | statement is not fact but rather.a bold...
"| Plaintiffs' Cause of Action for Premises | mischaracterization of plaintifis’ discovery:
-| Ovwner/Contractor Liability as against responses, which are not factually devoid. ©
2 “MCCLURE ELECTRIC; Plaintiffs’. Bf San SS Sees
:| response reiterates the information i in
plaintiffs’ responses to standard asbestos
: interrogatories, followed by over ten pages -
of generic documents, however, plaintiffs :
| present no admissible evidence which:
: Supports their claims = .

: ‘MCCLURE ELECTRIC’s Special - a
Interrogatory. No. v7, attached as Exhibit C
to Bacon Decl.; Plaintiffs’ Amended So
Responses to MCCLURE ELECTRIC’s
--) Special Interrogatory, No..17; attached as
: Habibi H @ Bacon Dod. SEES

MCCLURE E'S Reply: Defendant objects to the admissibility of testimony regarding the -
composition of. fireproofing: ne Irrelevant ‘Evid. Code, §§ 210,350, 352); Lacks foundation;

As patil have} not pu forth any, relevant, competent evidence which raises a triable :
issue of disputed fact regarding Plaintiff's pateeet€ exposure to asbestos attributable to oop

49. To date, sara ROS 2 = wok Disputed. Ashe Wallfied in his Gepoation yoo
: admissible evid nce linking MCCLURE. ~ | Mr. ROSS worked alongside employees of |
: - MCCLURE ELECTRIC, INC. at the <<
remodel of a highrise ‘building i in
downtown San Francisco, California’
| between 1967 and 1972. At this site, as a_
~-:| joumeyman insulator, Mr.:ROSS. o>
Lee erformed insulation work ¢ on air

~ REPLY TO PLAINTIFFS RESPONSE TO DEFENDANT MCCLURE ELECTRIC, INC. § SEPARATE STATEMENT OF m8
Sater: UNDISPUTED MATERIAL FACTS IN SUPPORT ‘OF is MOTION FOR. SUMMARY JUDGMENT.: Deel M1112:

“MCCLURE ELECTRIC’s Undisputed

Material Facts and Supporting Evidence.

Plaintiffs "Responte and Supporting
Evidence —

Exhibits A 1; Bacon. Decl. LT 12; Hedman

“a5.

conditioning and heating ducts. He did this
work over three different jobs within that

‘| time period, for a total of ‘approximately 1¢ 10. :
. days. : ‘

(eposition of Robert Ross, attached as _
Exhibit A to the Acufia Decl. at 2349:19-
2350:11, 2352:2-4. Ross Decl. ee B :

- to the Acuiia Decl, at 3.)

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

os based on their company’s name on their
‘| 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. :

. ROSS. was iithan 5 to 29 feet fromm thie
: work. -

{Ross Deposition, Exhibit A S the Acufia

"| Deel, at 2355:8-2357:17, 2358:8-14,

2358:25-2359:4, Ross Decl. Exhibit 1 ye
the Acuia Ded, vatq 4.

As! he testified i in his deposition, the Q

sprayon fireproofing material that he saw.

>| MCCLURE employees scrape and disturb

was an old, gray, finer material with fibers

~ | 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, ~~

Vp es _ 2 experience and training, Mr ROSS knows

“REPLY-TO PLAINTIFFS" RESPONSE TO DEFENDANT. MCCLURE FIECTRIC, ANC. 3 SEPARATE STATEMENT OF :

"UNDISPUTED MATERIAL, FACTS IN SUPPORT ‘OF iTS MOTION FOR: SUMMARY. SUDGMENT. ft“MCCLURE ELECTRICs Tndisputed

Plaines” Response and Supporting :
Evidence :

Material Facts and Supporting Evidence

that the fireproofing material MCCLURE
disturbed.in his presence contained <->
asbestos because he is able to distinguish
by color, texture and smell the asbestos-

containing fireproofing material from the
non-asbestos variety. :

(Ross Deposition, Exhibit A to the be Acuta

Decl., at-2359:15-17, 2360:24-2361:1,

| 2360:21-2362:3. Ross Decl., Exhibit B to

: the Acutia Decl. satgs)

As: a career insulator working w with ind
around asbestos-containing materials on :
construction sites, Mr. ROSS has come to

“| learn and is able to differentiate between

the old, asbestos-containing fireproofing, S
and new, non-asbestos containing" :

fireproofing. The older type of Sreproofing

that contained asbestos had a finer.

consistency than the new ‘fireproofing.
Additionally, the older asbestos- -containing

: fireproofing had fibers that stuck out of it a

_| when viewed up close, whereas the :

~~] asbestos-free fireproofing did not. . Mr.
-| ROSS did not see this later type of:

fireproofing on jobsites until Te iia)
the mid-1970s. Mr. ROSS learned that the.
old, finer, gray material with fibers sticking

out described above contained asbéstos.
: ‘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 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 —
being applied. On that job, Mr ROSS:
learned how. to differentiate between =
asbestos-fireproofing versus the 1 non-

26

o ‘asbestos: “pe That snore was -

: REPLY. TO PLAINTIFFS RESPONSE TO DEFENDANT MCCLURE. FLECTRIC, Ne: 'S. SEPARATE STATEMENT: TOF *
‘UNDISPUTED MATERIAL FACTS IN ‘SUPPORT OF ms MOTION FOR SUMMARY JUDGMENT. oS woeMCC