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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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Dennis M. Young, Esq. SBN 121178
Lauren C. Mcleod, Esq. SBN 255886
FOLEY & MANSFIELD, PLLP

300 Lakeside Drive, Suite 1900
Oakland, CA 94612

Telephone: (510) 590-9500

Facsimile: (510) 590-9595

E-mail: dyoung@foleymansfield.com

Attorneys for Defendant
ACCO ENGINEERING SYSTEMS, INC.

ELECTRONICALLY

FILED

Superior Court of Califo!
County of San Francis

MAY 02 201

Clerk of the Cou
BY: ALISON AGBAY
Deputy

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF SAN FRANCISCO

ROBERT ROSS and JEAN ROSS,
Plaintiffs,
vs.
C.C. MOORE & CO. ENGINEERS, et al.,

Defendants.

Case No: CGC-10-275731
“Asbestos-Related Case”

DEFENDANT ACCO ENGINEERING
SYSTEMS, INC.’S REPLY TO
OPPOSITION ON MOTION FOR
SUMMARY JUDGMENT

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

1 INTRODUCTION

ACCO Engineered Systems, Inc. (‘ACCO”) does not contest that Robert Ross

(“Plaintiff") was exposed to fireproofing. The question is whether that fireproofing contained

asbestos. As ACCO’s Motion sets forth, Plaintiff cannot establish this fundamental fact. The

essence of plaintiff's argument for creating a triable issue of fact is that the “old” fireproofing

must have contained asbestos because it looked different from the “new” fireproofing’.

' £.g., See Disputed Fact #12 of Plaintiff's Response to ACCO’s Separate Statement of
Undisputed Facts, and See Exhibit A to the Declaration of Jamie A. Newbold in Support of

DEFENDANT ACCO ENGINEERING SYSTEMS, INC.’"S REPLY TO OPPOSITION ON MOTION FOR
SUMMARY JUDGMENT

nia,
0

(Clerka nw

ACCO’s Motion should be granted. Plaintiff offers no evidence other than his own
speculation to support his allegations that ACCO caused him to be exposed to asbestos-
containing products.

H. = PLAINTIFF’S ALLEGATIONS OF EXPOSURE ARE BASED ON

SPECULATION AND CONJECTURE

It is well-established that Plaintiffs must prove exposure to asbestos-containing products.
Rutherford v. Qwens-Hlinois, Inc. (1997) 16 Cal.4th 953, 975 [“The burden of proof as to
exposure is not disputed in this case. Even with the jury instruction at issue, Plaintiffs bore the
burden of proof on the issue of exposure to the defendant's product; . . .”). Claims of exposure
based on conjecture and speculation are not sufficient. Andrews, supra, 138 Cal.App.4th at 112,
Review of asbestos-related cases is illustrative.

McGonnell v. Kaiser Gypsum Co., Inc. (2002) 98 Cal.App.4th 1098 is directly on point.

The court considered the evidence Plaintiffs presented against defendant Kaiser Gypsum:

With respect to Kaiser Gypsum products, Plaintiffs had Kaiser
Gypsum invoices showing the sale of wallboard and joint
compound to a contractor in 1972, There are indications on the
invoices that the materials were for a project at California Pacific.
Plaintiffs’ other evidence showed Kaiser Gypsum did not use
asbestos in its wallboard, but that the joint compound could have
contained asbestos. [footnote omitted] Although the joint
compound was delivered to the contractor a few years before
McGonnell began his employment at California Pacific, it is at
least within the realm of possibility that McGonnell encountered a
wall with Kaiser joint compound during his 24 years of
employment at California Pacific.

Jd. at 1105. The court concluded:

Does this possibility create a triable issue of fact? We think not. It
is not enough to produce just some evidence. The evidence must be
of sufficient quality to allow the trier of fact to find the underlying
fact in favor of the party opposing the motion for summary
judgment. (Aguilar, supra, 25 Cal.4th at p. 850.) All that exists in
this case is speculation that at some time McGonnell might

Plaintiff's Opposition, The deposition of Robert Ross, @ Volume II, pp 264:18-22, “There was a
difference between the newer fireproofing and the old. The old was a lot fier. The new
fireproofing they put in in (sic) , who knows, the 80s, whenever. It’s a lot more of it. I mean it’s
like oatmeal.”

2

DEFENDANT ACCO ENGINEERING SYSTEMS, INC.’"S REPLY TO OPPOSITION ON MOTION FOR
SUMMARY JUDGMENTa nw

have cut into a wall that might have contained Kaiser joint
compound that might have contained asbestos. The evidence
creates only “a dwindling stream of probabilities that narrow
into conjecture.”

Id. (emphasis added).
As was the case in McGonnell, plaintiff here offers only conjecture that the fireproofing

he saw disturbed by ACCO employees contained asbestos.

Wl. PLAINTIFF’S CAUSE OF ACTION FOR STRICT LIABILITY FAILS AS A
MATTER OF LAW BECAUSE HE HAS FAILED TO PRODUCE EVIDENCE
THAT ACCO MANUFACTURED, DISTRIBUTED, OR SOLD _ ASBESTOS-

ee
CONTAINING PRODUCTS AT ANY TIME’.

Plaintiffs cause of action for strict liability fails as a matter of law because ACCO
was a service provider and not a manufacturer, designer, or supplier of a product. California law
is clear on this issue — subcontractors that provide services, such as the installation of a
particular product during construction, are not subject to strict products liability. See Jimenez v.
Superior Court (2002) 29 Cal.4th 473, 479, citing Murphy v. E.R. Squibb & Sons, Inc. (1985) 40
Cal.3d 672, 677, holding strict products liability law does not apply to services; Pierson v. Sharp
Memorial Hospital, Inc. (1989) 216 Cal.App.3d 340, 345, holding the law of negligence, not
strict liability, governs services; and Restatement of Torts Third, Products Liability 1 § (b),
which states services, even provided commercially, are not products.

The dispositive case on this issue is Monte Vista v. Superior Caurt (1991) 226
Cal.App.3d 1681. In Monte Vista, the California Court of Appeals turned to the Restatement
because there was no authority on the issue of whether a subcontractor came within the chain of
commerce as a supplier of a product it mstalled to the extent it became strictly liable if the item
was defective. Restatement of Torts Second clearly states, in pertinent part:

(1) One who sells any product in a defective condition unreasonably dangerous
to the user or consumer or his property is subject to liability for physical harm
thereby caused to the ultimate user or consumer, or to his property, if

? ACCO understands that plaintiff has agreed to DISMISS it’s second cause of action for
strict products liability as against ACCO. As such, this section of ACCO’s Reply brief is moot,
and upon receipt of said partial dismissal, ACCO will notify the court to disregard this section of
its Reply.

3

DEFENDANT ACCO ENGINEERING SYSTEMS, INC.’"S REPLY TO OPPOSITION ON MOTION FOR
SUMMARY JUDGMENTa nw

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial
change in the condition in which it is sold.

/d., eraphasis in original.

Here, plaintiff sued ACCO based on a claim of asbestos exposure as a result of allegedly
working with or around ACCO employees. Plaintiff himself testified during deposition that
ACCO was a contractor. He stated that at the job sites where he saw ACCO, his employer was
either a subcontractor to ACCO, or a fellow subcontractor with ACCO. Plaintiff has not and can
not proffer evidence that ACCO was a seller engaged in the business of selling any asbestos-
containing products to which he was allegedly exposed. Accordingly, under California law,
strict products liability cannot be imposed on ACCO, and ACCO is entitled to summary
adjudication as to plaintiffs cause of action for strict liability.

It is well-settled that a products liability action, such as those improperly pled against
ACCO, lie only against the designers and manufacturers of a defective product, as well as those
engaged in the business of selling such a product. In Greenman v. Yuba Power Products, Inc.
(1963) 59 Cal.2d 57, the California Supreme Court held that the manufacturer of a power tool
was strictly liable in tort because the power tool was placed on the market, without inspection for
defects, and had a hidden defect that caused plaintiff's injury. Since the Greenman decision, this
tule has been made applicable to retailers (Vandermark v. Ford Motor Co. (1964) 61 Cal.2d
256); bailers and lessors (Price v. Shell Oil Company (1970) 2 Cal.3d 245); wholesalers and
distributors (Barth v. B.F. Goodrich Tire Co. (1968) 265 Cal.App.2d 228); and sellers of mass-
produced homes (Kriegler v. Eichler Homes, Inc. (1969) 269 Cal.App.2d 224). Thus, strict
products liability in California has been applied to the manufacturers, retailers, bailers, lessors,
wholesalers, distributors, and sellers of products. Plaintiff does not and cannot provide any
evidence that ACCO, a HVAC contractor, can be held liable for asbestos-containing products it
did not manufacture, sell, supply or distribute.

Mit
Me

4

DEFENDANT ACCO ENGINEERING SYSTEMS, INC.’"S REPLY TO OPPOSITION ON MOTION FOR
SUMMARY JUDGMENTBo wo KN

I. CONCLUSION

Plaintiff cannot establish a triable issue of fact. There is no evidence Plaintiff was
exposed to asbestos-containing fireproofing or any other material through the conduct of ACCO,
other than plaintiff's own speculative testimony.

Because no threshold showing of exposure to asbestos as a result of any act or omission
by ACCO exists as a matter of law, none of the causes of action pled herein survive as to ACCO,
and ACCO’s motion for summary judgment should be granted. Alternatively, for the same
reasons, ACCO’s motion for summary adjudication that (1) limitations on the doctrine of
peculiar risk bars plaintiff's claims for negligence and contractor liability against ACCO and (2)

strict products liability does not apply to ACCO, should be granted.

DATED: May 2, 2013 FOLEY & MANSFIELD, PLLP

Attorneys for Defendant
ACCO ENGINEERING SYSTEMS, INC

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DEFENDANT ACCO ENGINEERING SYSTEMS, INC.’S REPLY TO OPPOSITION ON MOTION FOR
SUMMARY JUDGMENTBo wo KN

PROOF OF SERVICE BY ELECTRONIC TRANSMISSION
ROBERT ROSS and JEAN ROSS vs. C.C. MOORE & CO, ENGINEERS, et al.,
San Francisco County Superior Court No.: CGC-10-275731
Our File No.: 12006-0023

J, the undersigned, declare as follows: | am employed in the County of Alameda,
California, and I am over the age of 18 years and not a party to the within action. My business
address is 300 Lakeside Drive, Suite 1900, Oakland, California, 94612.

On the date executed below, I electronically served the following document(s) via
LexisNexis website described as:

DEFENDANT ACCO ENGINEERING SYSTEMS, INC.’S REPLY TO OPPOSITION ON
MOTION FOR SUMMARY JUDGMENT

I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct and that this declaration was executed on May 2, 2013 at Oakland,

California

Rondi L. Preston

1

PROOF OF SERVICE BY ELECTRONIC TRANSMISSION