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

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                                1 IAN P. DILLON, State Bar No. 203612
idillon@wfbm.com

2 | PAMELA E. STEVENS, State Bar No, 232609
pstevens@wibm,com ELECTRONICALLY
3 | DILLON. KEIFER, State Bar No. 282297 . FILED
dkeifer@wfbm.com Superior Court of California,
4 | WALSWORTH FRANKLIN BEVINS & McCALL, LLP County of San Francisco
601 Monigomery Street, Ninth Floor
5 | San Francisco, California 94111-2612 MAY 02 2013
Telephone: (415) 781-7072 BY: WILLIAM TRUPEK

Facsimile: (415) 391-6258 Deputy Clerk

6

7 | Attlomeys for Defendant
D. ZELINSKY & SONS, INC.

8

9

SUPERIOR COURT OF CALIFORNIA
10 COUNTY OF SAN FRANCISCO

ROBERT ROSS and JEAN ROSS, Case No. CGC-10-275731

Plaintiffs, Hon: Teri L. Jackson
Dept: 503

VS. Date: May 7, 2013
Time: 9:30 a.m.

2

3

4

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

5 DEFENDANT D. ZELINSKY AND SONS,
Defendant. INC.'S REPLY TO PLAINTIFFS"

6 RESPONSE TO DEFENDANT

D.ZELINSKY AND SONS, INC'S

7 SEPARATE STATEMENT OF

8

9

UNDISPUTED MATERIAL FACTS

Trial Date: June 10, 2013

20 Pursuant to Code of Civil Procedure § 437(b), Defendant D. Zelinsky, Inc. hereby provides

21 ithe following Reply to Plaintiff Robert Ross and Jean Ross’ (“Plaintiffs”) response to D. Zelinsky,

22 ine.’s Separate Statement of Undisputed Material Facts in support of its motion for summary
23 adjudication.
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FACTS IN SUPPORT OF MOTION

FOR SUMMARY ADJUDICATION

I PLAINTIFF’S CAUSE OF ACTION FOR STRICT LIABILITY FAILS
BECAUSE ZELINSKY WAS NOT A MANUFACTURER, SUPPLIER OR
DISTRIBUTOR OF ASBESTOS-CONTAINING PRODUCTS; AND PLAINTIFF
HAS NO ADMISSIBLE EVIDENCE TO SUPPORT SUCH A CLAIM.

UNDISPUTED MATERIAL FACTS AND
SUPPORTING EVIDENCE:

PLAINTIFFS’ RESPONSE AND

SUPPORTING EVIDENCE:

1. On December 17, 2010, Robert Ross and
Jean Ross filed this asbestos- related
personal injury and loss of consortium
action against D. Zelinsky & Sons, Inc.
(“Zelinsky”), alleging that Robert Ross
(“plaintiff”) developed colon cancer and
asbestosis as a result of exposure to
asbestos-containing materials for which
Zelinsky is partially liable.

Plaintiffs Complaint, attached to the
Declaration of Alex A. Lozada (Lozada
Declaration”) as Exhibit A (A Request for
Judicial Notice is filed herewith).

1. Undisputed.

1D, Zelinsky & Sons, Inc.’s Reply: This fact is

against Zelinsky for negligence, strict
liability, false representation, punitive
damages, and premises owner/contractor
ability.

Plaintiff's Complaint, attached to the
Lozada Declaration as Exhibit A.

Plaintiff asserted causes of action

undisputed,

2. Undisputed.

Qe

DEFENDANT D. ZELINSRY AND SONS, ING’S REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANT
D.ZELINSKY AND SONS, INC.S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS

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3619-325951 UNDISPUTED MATERIAL FACTS AND PLAINTIFFS’ RESPONSE AND —

2 SUPPORTING EVIDENCE: SUPPORTING EVIDENCE:

312. D. Zelinsky & Sons, Inc.’s Reply: This fact is undisputed. |
4

5

6

7

9

10 On January 13, 2012, plaintiff dismissed | 3. Undisputed.
his causes of action for false

i representation and punitive damages
L against Zelinsky.

Request for Dismissal, filed January 13, 2012,
13 | attached to the Lozada Declaration as Exhibit B.

is [3 D. Zelinsky & Sons, Inc.’s Reply: This fact is undisputed.

16
17
18
19 _
4. Zelinsky is a contractor that provides | 4. Undisputed but irrelevant.
20 painting services.
As he testified at his deposition, plaintiff
21 | Deposition of James McCloskey, taken August ROBERT ROSS worked in proximity to
9, 2006, attached to the Lozada Declaration as painters employed by defendant ZELINSKY
22 | Exhibit C. at 47:3-16. & SONS, INC. ("ZELINSKY") at
approximately 25 construction sites from
23 1960 and 1981, particularly from 1960
through 1978, as the ZELINSKY employees
24 mixed, sanded, and swept Kaiser Gypsum
Company, Inc., Hamilton Materials, Inc.
25 Red Dot, and Paco brand joint compound.
(Declaration of Plaintiff Robert Ross, 1111 1-7,
26 attached to the Saechao Decl. as Exhibit A.)
27 The Kaiser Gypsum Company, Inc.,
Hamilton Materials, Inc. Red Dot, and Paco
28 . __brand joint compound mixed, sanded, and
‘ves 23
wala te DEFENDANT D. ZELINSKY AND SONS, ING’S REPLY TO PLAINTIFFS’ RESPONSE TO DEFENDANT
enronsess sr tae asagyse SPLINSKY AND SONS, INC'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
3619-3.25951 |) UNDISPUTED MATERIAL FACTS AND PLAINTIFFS’ RESPONSE AND
2 SUPPORTING EVIDENCE: SUPPORTING EVIDENCE:
3 ~ ~ swept in Mr. ROSS's presence was asbestos
containing, (Plaintiff Separate Statement of
4 Disputed Facts Nos. 6-11, filed herewith.)
5
6
7
8 4, D. Zelinsky & Sons, Inc.’s Reply: This fact is undisputed.
gi > At deposition, plaintiff testified that he | 5. Undisputed but irrelevant.
was familiar with Zelinsky as a painting
10 contractor. As he testified at his deposition, plaintiff
ROBERT ROSS worked in proximity to
1 Relevant portions of plaintiffs deposition painters employed by defendant ZELINSKY
testimony, attached to the Lozada Declaration at approximately 25 construction sites from
12488 Exhibit H at 1337:17-24. 1960 and 1981, particularly from 1960
through 1978, as the ZELINSKY employees
B mixed, sanded, and swept Kaiser Gypsum.
4 Company, Inc., Hamilton Materials, Inc.
Red Dot, and Paco brand joint compound.
15 (Declaration of Plaintiff Robert Ross, 1141-7,
attached to the Saechao Deel. as Exhibit A.)
16 The Kaiser Gypsum Company, Inc.,
W Hamilton Materials, Inc. Red Dot, and Paco
brand joint compound mixed, sanded, and
18 swept in Mr. ROSS's presence was asbestos
containing, (Plaintiffs' Separate Statement
19k . of Disputed Facts Nos. 6-11, filed herewith.
5. D. Zelinsky & Sons, Inc.’s Reply: This fact is undisputed.
20
21
2246. Despite Zelinsky’s status as a painting | 6. Undisputed.
contractor, plaintiff alleges a cause of
23 action against Zelinsky for strict
liability.
24
Plaintiff's Complaint, attached to the Lozada
25 | Declaration as Exhibit A.
261 6.D. Zelinsky & Sons, Inc.’s Reply: This fact is undisputed.
27
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arimeyy sr awe agsagody eee SKY AND SONS, INC.'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
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UNDISPUTED MATERIAL FACTS AND PLAINTIFFS’ RESPONSE AND

SUPPORTING EVIDENCE: SUPPORTING EVIDENCE:

7. Although requested in Special | 7. Disputed. Plaintiffs objects to this
Interregatory No. 10, plaintiff fails to statement on the grounds that the cited
identify the names of manufacturers, evidence does not support the purported fact.
suppliers, and/or distributors of and is therefore, misleading and misstates
asbestos-containing products Zelinsky the evidence.

allegedly used in plaintiff's presence.
Plaintiffs identify Hamilton brand joint
Zelinsky’s Special Interrogatories to plaintiff compound. (Plaintiffs' Response to
attached to the Lozada Declaration as Exhibit D Defendant D. Zelinsky & Sons, Inc.'s

at 3:5-9; and plaintiffs responses to Special Interrogatories, Set One, pp. 17:715.)
Zelinsky*s Special Interrogatories attached to
the Lozada Declaration as Exhibit E at 17:7-15. Additionally, plaintiffs also identify Paco
brand joint compound as one of the brands
of joint compound ZELINSKY employees
disturbed in his presence. (Plaintiffs'
Response to Defendant D. Zelinsky & Sons,
Inc.'s Special Interrogatories, Set One, pp.
1:21-38:18.)

And at his deposition, in addition to
Hamilton and Paco brand joint compound,
plaintiff also identifies Kaiser Gypsum
brand joint compound as one of the brands
of joint compound ZELINSKY disturbed in
his presence from 1960 throughout the
1970s. (Declaration of Plaintiff Robert Ross,
41-7, attached to the Saechao Decl. as
Exhibit A.)

7. D. Zelinsky & Sons, Inc.’s Reply: Plaintiff's cite no evidence that response to Special
Interrogatory Ne. 10 identifies the names of manufacturers, suppliers and/or distributors of
asbestos containing products Zelinsky allegedly used in plaintiff's presence. Accordingly,
this fact is undisputed. Alternatively, the information cited by plaintiff does not establish
that Zelinsky was a manufacturer, supplier, or authorized distributor of asbestos containing
products, Therefore, this fact is undisputed as to the strict liability cause of action.

Se
DANT D. ZELINSKY AND SONS, INC'S REPLY TO PLAINTIEFS' RESPONSE TO DEFENDANT
SLINSKY AND SONS, INC.'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS

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regarding the —_asbestos-containing
materials Zelinsky allegedly used in
plaintiff's presence.

Zelinsky’s Special Interrogatories to plaintiff
attached to the Lozada Declaration as Exhibit D

at 2:17-21; and plaintiffs responses to
Zelinsky’s Special Interrogatories attached to
the Lozada Declaration as Exhibit E at 12:25-
16:9.

Disputed. Plaintiffs object to this
statement on the grounds that the cited
evidence does not support the purported fact.
and is therefore, misleading and misstates
the evidence.

Plaintiffs cite to disclosures to the EPA from
various manufacturers of asbestos-containing
joint compound, which include Kaiser
Gypsum Company, one of the brands
ZELINSKY disturbs in plaintiff's presence.
(Plaintiffs' Response to Defendant D.
Zelinsky & Sons, Inc.'s Special
Interrogatories, Set One, pp. 15:5-14.)

Plaintiffs further cite to information and
documents establishing the PACO brand joint
compound was asbestos-containing: "Kelly-
Moore purchased Paco Texture Corporation
in December 1960 and manufactured drywall
finishing compounds, including joint
compounds and wail iexture products. These
drywall finishing, compounds, including joint
coin pounds and wall texture products,
contained asbestos at all times relevant to
this action and until at least 1978. Plaintiffs
further identify facts stated in Union Carbide
Corporation's purchase order, shipping and
invoice forms dating from 1964 to 1977,
which state that Kelly-Moore repeatedly
purchased asbestos fibers from Union
Carbide Corporation for use in its PACO
drywall accessory materials." (Plaintiffs'
Response to Defendant D, Zelinsky & Sons,
Inc.'s Special Interrogatories, Set Two, pp.
91417)

Plaintiffs also cite to the Deposition transcript
of Willis Hamilton, taken December 18,
2003, In Re: Complex Asbestos Litigation (p.
18:20-23), in which Mr, Hamilton testified
that from 1959 until January 1978,
HAMILTON MATERIALS, INC.'s products
contained chrysotile asbestos fiber. Plaintiffs
identify the deposition testimony and all of the
attached exhibits therein of Willis Hamilton,
in his capacity as Custodian of Records for
defendant HAMILTON MATERIALS, INC.,
beginning on December 4, 1996, in multiple
cases (lead: Iona Cunningham v. Hamilton
Materials, Inc., et al., Alameda County
Superior Court Case No. 751113-2), reported
by Atkinson-Baker, Inc., 5000 Birch Street,

DEFENDANT D. ZELINSKY AND SONS, INC'S R
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(714) 834-0121, This deposition was also
taken in In Re: Complex Asbestos Litigation,
San Francisco Superior Court No, 828684, In
Re; Complex Asbesto Litigation, Alameda
County Superior Court Case No. 607734-9,
and In Re: Shipyard and Applicator
Asbestos Cases, Alameda County Superior
Court Case No. $37868-7, Mr, Hamilton
testified that from 1959 to 1974,
HAMILTON MATERIALS, INC, did not
market a non-asbestos taping compound
(Vol. 1, pg. 196:12-17.) Mr. Hamilton
testified that he does not believe that
HAMILTON MATERIALS, INC. marketed
an asbestos-free multi-purpose joint
compound prior to 1977. (Vol. 1, pg.
197:16-22.) (Plaintiffs' Response to
Defendant D. Zelinsky & Sons, Inc.'s
Special Interrogatories, Set Two, pp. 26: 1 8-
27.)

Plaintiffs cite to the General Order No. 129
Interrogatory Responses of Hamilton
Materials, Inc., Kelly-Moore Paint
Company, Inc. and Kaiser Gypsum
Company. (Plaintiffs' Response to
Defendant D, Zelinsky & Sons, Inc.'s
Special Interrogatories, Set Two, pp. 11:6-
1, 11:15-17.)

In its responses, Hamilton Materials, Ine.
admits its "Red Dot" joint compound
contained asbestos from 1957 through 1977.
(See Hamilton Materials, Inc.'s General
Order No. 129 Interrogatory Responses,
attached as Exhibit 5 to the Charles Ay
Declaration filed herewith.)

Kelly-Moore admits that its Paco brand joint
compound contained asbestos from 1958
through 1978, (See Kelly-Moore Paint
Company, Inc.'s General Order No, 129
Interrogatory Responses, attached as
Exhibit 7 to the Charles Ay Declaration
filed herewith.)

And Kaiser Gypsum admits its joint
compound products contained asbestos
throughout the 1960s until approximately
1975-1976. (See Kaiser Gypsum
Company's General Order No. 129
Interrogatory Responses, attached as
Exhibit 9 to the Charles Ay Declaration
filed berewith,)

7.

DEFENDANT D. ZELINSKY AND SONS, INC‘'S REPLY TO PLAINTIFFS’ RESPONSE TO DEPENDANT
D.ZELINSKY AND SONS, INC.'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS

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Additionally, plaintiffs cite to a wealth of
documents and information, including
defense expert testimony, establishing that
the joint compound manufactured and
disturbed by ZELINSKY in Mr. ROSS’s
presence from 1960 through the 1970s was
more likely than not asbestos-containing.
(Plaintiffs' Response to Defendant D.
Zelinsky & Sons, Inc.'s Special
Interrogatories, Set Two, pp. 23:23-28:2.)

ZELINSKY's statement is completely
unsupported by the cited evidence and
defendant chose to ignore the detailed
account plaintiff gave in his interrogatories
responses, Therefore, in failing to account
for evidence presented by plaintiffs
establishing all elements of their claim
against ZELINSKY, defendant fails to shift
the burden and ZELINSKY's motion is a
_ non-starter.

8. D. Zelinsky & Sons, Inc.’s Reply: Objection: Relevance, Hearsay, Foundation. Zelinsky
objects to the deposition testimony of Willis Hamilton and Douglas Merrill, and to the
declaration of Charles Ay on the grounds they are out of court statements proffered for the
truth of the matter asserted without falling under any hearsay exception. Zelinsky further
objects on the grounds they bear no relevance to the issue of whether Zelinsky was a
manufacturer, supplier, or authorized distributor of asbestos containing products. Zelinsky
further objects to the declaration of Charles Ay on the grounds it lacks foundation. Zelinsky
alse objects te General Order 129 as hearsay and irrelevant.

Plaintiff's cite no evidence that response to Special Interrogatory No. 7 identifies documents
regarding the manufacturers, suppliers and/or distributors of asbestos containing products
Zelinsky allegedly used in plaintiff's presence. Accordingly, this fact is undisputed.
Alternatively, the information cited by plaintiff docs not establish that Zelinsky was a
manufacturer, supplier, or authorized distributor of asbestos containing products:

for i indi: h i IL
9. Although requested in Zelinsky’s | 9.

Disputed. Plaintiffs object to this |

Special Interrogatory No. 8, plaintiff
fails to identify any specific witnesses
with information regarding the asbestos-
containing products Zelinsky allegedly
used in plaintiffs presence.

Zelinsky’s Special Interrogatories to plaintiff
attached to the Lozada Declaration as Exhibit D
at 2:22-25; and plaintiff's responses to
Zelinsky’s Special Interrogatories attached to
the Lozada Declaration as Exhibit E at 16:10-
24.

statement on the grounds that the cited
evidence does not support the purported fact
and is therefore, misleading and misstates
the evidence.

Plaintiffs identify ROBERT ROSS, c/o
Brayton+Purcell LLP, and co-worker
Robert Cantley, c/o Brayton+Purcell LLP.
(Plaintiffs' Response to Defendant D.
Zelinsky & Sons, Inc.'s Special
Interrogatories, Set One, pp. 16:10-24.)

Defendant has not aftempted to make any
showing that co-worker Robert Cantley, do
BraytontPurcell LLP, does not have
knowledge of facts that support plaintiffs’
cause of action against defendant
ZELINSKY,

-8-

DEFENDANT D. ZELINSKY AND SONS, INC'S REPLY TO PLAINTIFFS RESPONSE TO DEFENDANT
D.ZELINSKY AND SONS, ING.'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS

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In order to shift the burden, the defendant
cannot simply assert lack of evidence.
Rather, the defendant must produce
evidence that one or more elements of
plaintiffs’ causes of action “cannot be
established." (C.C.P. § 437 (0)(2);
Scheiding v. Dinwiddie Construction Co.
(1999) 69 Cal. App.4th 64, 71-72; Villa v.
MeFerren (1995) 35 Cal.App.4ih 733;
emphasis added.) Argument alone is
insufficient. (Aguilar v, Atlantic Richfield
Co., supra. at p. 855.) If a defendant
attempts to shift the burden by pointing to
factually devoid discovery responses or
insufficient deposition testimony, defendant
must also show that it has asked all the
questions which would elicit the facts or
Jack of facts necessary for plaintiff to prove
his case:

While we might be able to presume that
Robert's answers to questions asked by other
parti¢s were complete so far as they went, we
can infer nothing at all with respect to
questions which were neither asked nor
answered.

(Scheiding v. Dinwiddie Construction Co.,
supra, at 81.)

Therefore, defendant fails to shift the burden
because defendant does not establish that
co-worker Robert Cantley, c/o Brayin
Purcell LLP, cannot provide facts to support
plaintiffs’ claims,

9. D. Zelinsky & Sons, Inc,’s Reply: Defendants object to plaintiff's statement on the ground
that the evidence cited by plaintiff is in response to a different interrogatory, and is therefore
misleading and misstates evidence. Plaintiffs cite to no evidence to dispute this fact.
Therefore, this fact is undisputed.

Although requested in Zelinsky’s Undisputed only for the purpose of this

Special Interrogatory No. 20, plaintiff
fails to provide any facts that support his
alleged cause of action for strict liability

motion, and to the extent that plaintiffs
will withdraw strict liability cause of
action.

against Zelinsky.

Zelinsky’s Special Interrogatories to plaintiff,
Set Two, attached to the Lozada Declaration as
Exhibit F at 1:20-22; and plaintiff's responses to
Zelinsky’s Special Interrogatories, Set T

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DEFENDANT D. ZELINSKY AND SONS, INC'S REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANT
D.ZELINSKY AND SONS, INC'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS

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at 1:21-38:18.

10. D. Zelinsky & Sens, Inc.’s Reply: This fact

is undisputed,

ii. Although requested in  Zelinsky’s
Special Interrogatory No. 21, plaintiff
fails to provide the names and/or contact
information for any individuals with
knowledge of facts that support his
cause of action for strict liability against
Zelinsky.

Zelinsky’s Special Interrogatories to plaintiff,
Set Two, attached to the Lozada Declaration as
Exhibit F at 1:23-25; and plaintiffs responses to
Zelinsky’s Special Interrogatories, Set ‘Two,
attached to the Lozada Declaration as Exhibit G
at 38:18-26.

ll.

Undisputed only for the purpose of this
motion, and to the extent that plaintiffs
will withdraw strict liability cause of
action.

111. D. Zelinsky & Sons, Inc.’s Reply: This fact is undisputed.

12. Although requested in Zelinsky’s
Special Interrogatory No. 22, plaintiff
fails to provide information regarding
any documents that support his cause of
action for strict liability against
Zelinsky.

Zelinsky’s Special Interrogatories to plaintiff,
Set Two, attached to the Lozada Declaration as
Exhibit F at 1:26-2:6; and plaintiffs responses
to Zelinsky’s Special Interrogatories, Set Two,
attached to the Lozada Declaration as Exhibit H
at 38:27-39:7.

Undisputed only for the purpose of this
motion, and to the extent that plaintiffs
will withdraw strict liability cause of
action,

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DEFENDANT D. ZELINSKY AND SONS, INC‘S REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANT
D.ZELINSKY AND SONS, INC'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS1112. D. Zelinsky & Sons, Ine.’s Reply: This fact is undisputed. ~

2

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4

5

6 13. No admissible evidence identified in| 13. Undisputed only for the purpose of this
plaintiff's discovery responses or at motion, and to the extent that plaintiffs

7 deposition supports his cause of action will withdraw strict liability cause of
for strict liability against Zelinsky. action.

8 | The pleadings on file in this action, as Exhibits

9 A through W attached to the Lozada

Declaration.

10 13. D. Zelinsky & Sons, Inc,’s Reply: This fact is undisputed. "

i
i. PLAINTIFF’S CLAIM FOR PREMISES OWNER/CONTRACTOR LIABILITY
2 FAILS BECAUSE PLAINTIFF HAS NO EVIDENCE THAT ZELINSKY
3 OPERATED OR CONTROLLED ANY PREMISES WHERE PLAINTIFF
WORKED.

4 _ a o
14, On December 17, 2010, Robert Ross and | 14. Undisputed.

sh Jean Ross filed this asbestos- related

personal injury and loss of consortium
6 action against D. Zelinsky & Sons, Inc.
(“Zelinsky”), alleging that Robert Ross
7 (“plaintiff”) developed colon cancer and
asbestosis as a result of exposure to
8 asbestos-containing materials for which

Zelinsky is partially liable.
9

Plaintiff's Complaint attached fo the
20 | Declaration of Alex A. Lozada (Lozada
Declaration”) as Exhibit A (A Request for
91 | Judicial Notice is filed herewith).

3214. D. Zelinsky & Sons, Inc.’s Reply: This fact is undisputed.

Watswerth,

Prandin, -l1- .
Metall, LA DEFENDANT D. ZELINSKY AND SONS, INC.'S REPLY TO PLAINTIFFS’ RESPONSE TO DEFENDANT
ELINSKY AND SONS, INC.'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS

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3619-3 2505iS Plaintiff asserted causes of action| 15. Undisputed.
against Zelinsky for negligence, strict
Hability, false representation, punitive
damages, and premises owner/contractor
ability.

Plaintiffs Complaint, attached to Lozada
Declaration as Exhibit A.

15. D. Zelinsky & Sons, Inc.’s Reply: This fact is undisputed.

16. On January 4, 2012, plaintiff dismissed | 16. Undisputed.
his causes of action for false
representation and punitive damages
against Zelinsky.

oO Dp oe NM DO HW RB WY HN

Request for Dismissal, filed January 4, 2012,
1 attached to the Lozada Declaration as Exhibit B.

16. D. Zelinsky & Sons, Inc.’s Reply: This fact is undisputed.

17, Zelinsky is a contractor that provides | 17. Undisputed.
painting services.

Deposition of James McCloskey, taken August
9, 2006, attached to the Lozada Declaration as
Exhibit C, at 47:3-16.

17. D. Zelinsky & Sons, Inc.’s Reply: This fact is undisputed,

24/18. Despite Zelinsky’s status as a painting | 18. Undisputed but irrelevant.
contractor, plaintiff alleges a cause of

25 action against Zelinsky for premises As he testified at his deposition, plaintiff
owner/contractor liability. ROBERT ROSS worked in proximity to
26 painters employed by defendant ZELINSKY
Plaintiff's Complaint, attached to the Lozada at approximately 25 construction sites from]
27 | Declaration as Lixhibit A. 960 and 1981, particularly from 1960
through 1978, as the ZELINSKY employees

288i _ __mixed, sanded, and swept Kaiser Gypsum

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Mec LL DEFENDANT D. ZELINSKY AND SONS, ING.'S REPLY TO PLAINTIFFS’ RESPONSE TO DEPENDANT

aasagony” ELINSKY AND SONS, INC'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
3619-3.2595

srronsnss arsei OO Company, Inc., Hamilton Materials, inc. |
Red Dot, and Paco brand joint compound,
2 (Declaration of Plaintiff Robert Ross, 1({{{1-7,
attached to the Saechao Decl. as Exhibit A.)
3
The Kaiser Gypsum Company, Inc.,
4 Hamilton Materials, Inc, Red Dot, and Paco
brand joint compound mixed, sanded, and
5 swept in Mr. ROSS's presence was asbestos
containing, (Plaintiff Separate Statement of
6 Disputed Facts Nos. 6-11, filed herewith.)
7 _
§ 18. D. Zelinsky & Sons, Inc.’s Reply: This fact is undisputed,
9
10
1119. At deposition, plaintiff testified that he | 19. Undisputed.
observed Zelinsky at several job sites,
2 including the following locations: Kaiser
Hospital, the Fairmont Hotel, Lawrence
3 Livermore Labs, San Francisco Airport,
Chabot College, Lockheed, Stanford
4 University, IBM, Hewlett-Packard, St.
Luke’s Hospital, San Francisco General
5 Hospital, and San Francisco  Siate
University.
16 . + tetas ua
Relevant portions of plaintiffs deposition
7 testimony, attached to the Lozada Declaration
as Exhibit H at 1339:7-23; 1342:18-1343:13;
19 | 1349:1-6; 1600:2-1601:15; 1605:25-1606:9,
1784:11-1785:15; 1790:19-1791:6; 1794:25-
19 | 1795:10; 1797-15-21; 1800:17-24; and 1803:7-
17; 1805:15-24.
20
19. D. Zelinsky & Sons, Inc.’s Reply: This fact is undisputed.
21
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Meche DEFENDANT D. ZELINSKY AND SONS, ING’S REPLY TO PLAINTIFES' RESPONSE TO DEFENDANT
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20. For each of these sites, plaintiff testified
that he did not see Zelinsky do anything
besides work relating to painting.

Relevant portions of plaintiff's deposition
testimony, attached to the Lozada Declaration
as Exhibit H at 1365:25-1366:4.

20. Disputed. Plaintiffs object to this
statement on the grounds that it is vague,
ambiguous as to the phrase "work relating to
painting,” ignores and misstates the
evidence, and is therefore, misleading. The
cited evidence does not support the

purported fact.

The cited evidence provides that Plaintiff
ROBERT ROSS testified that defendant

6 ZELINSKY, as part of their painting work,
also mixed, sanded, and applied joint
7 compound mud:
8 Q. Sir, other than mixing, applying, sanding
and painting, do you recall Zelinsky doing
9 any other work on job sites where you saw
them? What I mean by mixing, sanding and
0 applying is mud,
A. Not that I can think of at this time.
1
20. D, Zelinsky & Sons, Inc.’s Reply: As plaintiff fails to cite to evidence that dispute this fact,
2 | this fact is undisputed. Further, the information cited by plaintiff does not establish that
Zelinsky owned, maintained, leased, managed or controlled any of the premises where
13 | plaintiff alleges he performed work. Therefore, this fact is undisputed as to the premises
4 owner/contractor liability causes of action.
5 a one
21. Although requested in Zelinsky’s | 21. Disputed. The cited evidence does not
16 Special Interrogatory No. 35, plaintiff support the purported fact.
fails to provide any facts that support his
7 i alleged cause of action for premises Plaintiff stated that he was exposed to
owner/contractor liability against PACO TEXTURES (KELLY MOORE
8 Zelinsky. PAINT COMPANY) and HAMILTON
MATERIALS joint compound mixed and
19 | Zelinsky’s Special Interrogatories to plaintiff, sanded by ZELINSKY employees in his
Set Two, attached to the Lozada Declaration as presence at 25 different job sites between the
20 | Exhibit F at 3:13-15; and plaintiff's responses to 1960s and 1970s, (Plaintiffs' Response to
Zelinsky’s Special Interrogatories, Set Two, Defendant D, Zelinsky & Sons, Inc.'s
21 | attached to the Lozada Declaration as Exhibit G Special interrogatories, Set Two, pp. 1:21-
at 42:26-43:6. 38:18.)
22
Plaintiffs further cite to information and
3 documents establishing the PACO brand
joint compound was asbestos-containing:
24 "Kelly-Moore purchased Paco Texture
Corporation in December 1960 and
25 manufactured drywall finishing compounds,
including joint compounds and wall texture
26 products. These drywall finishing
compounds, including joint corn pounds and
27 wall texture products, contained asbestos at
all times relevant to this action and until at
28 ee . __L____least 1978. Plaintiffs further identify facts
Wateworth
Kracti -14- .
etait ’ DEFENDANT D. ZELINSK Y AND SONS, INC. PLY TO PLAINTIFFS' RESPONSE TO DEFENDANT

D.ZELINSKY AND SONS, INC'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS

23546951
3G19-3.2595,1 ° siated in Union Carbide Corporation's
purchase order, shipping and invoice forms

2 dating fiom 1964 to 1977, which state that
Kelly-Moore repeatedly purchased asbestos

3 fibers from Union Carbide Corporation for
use in its PACO drywall accessary

4 materials." (Plaintiffs' Response to
Defendant D. Zelinsky & Sons, Inc.'s

$ Special Interrogatories, Set Two, pp. 9:14-
17)

6
Moreover, plaintiffs cite to the deposition

7 transcripts and all exhibits attached thereto
of Douglas Merrill, "Mr. Merrill was

8 designated as Person(s) Most
Knowledgeable and Custodian(s) of

9 Records, both past and present, of KELLY-
MOORE, as well as corporate

0 representatives, both past and present, of

KELLY-MOORE, including, but not limited

ll to,(in Re Asbestos Litigation, Case No.
2004-03964 commencing on 5-31-2006 and

12 all subsequent dates; Shipyard and
Applicator Cases commencing on

13 Noveinber J, 1984 and February 27, 1985.)
In Volume 1 of the deposition of Mr, Merrill

14 regarding Asbestos Litigation Case No.
2004-03964, Mr. Merrill states that "Paco

is products contained asbestos from 1960-78
(qualified by "some" but read in context of

16 : asbestos removal effort, clear that efforts to
remove asbestos did not commence until

7 early 70s and did not conclude until 1978"
(Volume | pg 144:1177:25) In Mr. Merrill's

18 deposition taken on 11/1/1984 he states that
PACO: interior drywall finishing products

19 which included: wall and ceiling texture, all
purpose taping, and all purpose topping

20 compound, all were asbestos-containing
starting in 1968. He said both the dry and

21 ready mix forms of all products listed above
were asbestos- containing (Vol. 1 pg. 14:1-

22 25). Mr. Merrill's deposition taken on
2/27/1985 he again states that starting in at

23 least 1969 that PACO drywall products were
asbestos-containing (Volume I pg. 9:18-

24 24), In the deposition Frederick D, Marquardt
Carey y. Fiberboard on September 30, 1981)

25 he states that from 1962-1976 PACO
texture and lopping compound were

26 asbestos-containing. (Vol. 1 pg. 30:18-
31:2)." (Plaintiffs Response to Defendant D,

27 Zelinsky & Sons, Inc.'s Special
Interrogatoties, Set Two, pp. 13:1-26.)

28 . ee ee ce cad

‘oot -15-
secur DEFENDANT BD. ZELINSKY AND SONS, INC'S REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANT
srroasisar 63s D.ZELINSKY AND SONS, INC.'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS

2354698.1
3619-3259528

Walsworth,
Frankia,
Bevis &

AteCatt, LP

eovonnnns ares

Plaintiffs also cite to the Deposition
transcript of Willis Hamilton, taken
December 18, 2003, In Re: Complex,
Asbestos Litigation (p. 18:20-23), in which
Mr. Hamilton testified that from 1959 until
January 1978, HAMILTON MATERIALS,
INC.'s products contained chrysotile
asbestos fiber. "Plaintiffs identify the
deposition testimony and all of the attached
exhibits therein of Willis Hamilton, in his
capacity as Custodian of Records for
defendant HAMILTON MATERIALS,
INC., beginning on December 4, 1996, in
multiple cases (lead: Jona Cunningham v,
Hamilton Materials, Inc., et al., Alameda
County Superior Court Case No. 751113-2),
reported by Atkinson-Baker, Inc., 5000
Birch Street, Suite 3000, Newport Beach,
California 92660 (714) 834-0121. This
deposition was also taken in In Re: Complex
Asbestos Litigation, San Francisco Superior
Court No. 828684, In Re: Corn lex Asbesto
Litigation, Alameda County Superior Court
Case No, 607734-9, and In Re: Shipyard
and Applicator Asbestos Cases, Alameda
County Superior Court Case No. 537868-7,
Mr. Hamilton testified that from 1959 to
1974, HAMILTON MATERIALS, INC. did
not market a non-asbestos taping compound
(Vol. 1, pg, 196:12-17.) Mr. Hamilton
testified that he does not believe that
HAMILTON MATERIALS, INC. marketed
an asbestos-free multi-purpose joint
compound prior to 1977, (Vol. 1, pg.
197:16-22.)" (Plaintiffs’ Response to
Defendant D. Zelinsky & Sons, Inc.'s
Special Interrogatories, Set Two, pp. 26:18-
27.)

Plaintiffs cite to the General Order No. 129
Interrogatory Responses of Hamilton
Materials, Inc., Kelly-Moore Paint
Company, Inc. and Kaiser Gypsum
Company. (Plaintiffs' Response to
Defendant D. Zelinsky & Sons, Inc.'s
Special Interrogatories, Set Two, pp. 11:6-
14, 11:15-17.)

In its responses, Hamilton Materials, Inc.
admits its "Red Dot" joint compound
contained asbestos from 1957 through 1977.
(See Hamilton Materials, Inc.'s General
Order No, 129 Interrogatory Responses,
attached as Exhibit 5 to the Charles Ay
Declaration filed herewith.) .

INSKY AND SONS, INC.

DEFENDANT D. @
D.ZELINSKY AND SONS, INC.'S SEPARAT

REPLY TO PLAINTIFFS’ RESPONSE TO DEFENDANT
STATEMENT OF UNDISPUTED MATERIAL FACTSWalswortls,
Bywwitin,
Bevins &

aeCadl, LLP

Kelly-Moore admits that its Paco brand joint
compound contained asbestos from 1958
through 1978. (See Kelly-Moore Paint
Company, Inc.'s General Order NO. 129
Interrogatory Responses, attached as
Exhibit 7 to the Charles Ay Declaration
filed herewith.)

And Kaiser Gypsum admits its joint

compound products contained asbestos

throughout the 1960s until approximately
1975-1976, (See Kaiser Gypsum Company's
General Order No, 129 Interrogatory
Responses, attached as Exhibit 9 to the
Charles Ay Declaration filed herewith.)

Additionally, plaintiffs cite to a wealth of
documents and information, including
defense expert testimony, establishing that
the joint compound manufactured and
disturbed by ZELINSKY in Mr. ROSS's
presence from 1960 through the 1970s was
more likely than not asbestos-containing.
(Plaintiffs' Response to Defendant D.
Zelinsky & Sons, Inc.'s Special
Interrogatories, Set Two, pp. 23:23-28:2.)

ZELINSKY's statement is completely
unsupported by the cited evidence and
defendant chose to ignore the detailed
account plaintiff gave in his interrogatories
responses. Therefore, in failing to account
for evidence presented by plaintiffs
establishing all elements of their claim
against ZELINSKY, defendant fails to shift
the burden and ZELINSKY's motion is a
non-starter,

21. D. Zelinsky & Sons, Inc.’s Reply: Objection: Relevance, Hearsay, and Foundation.
Zelinsky objects to the deposition testimony of Willis Hamilton and Douglas Merrill, and to
the declaration of Charles Ay on the grounds they are out of court statements proffered for
the truth of the matter asserted without falling under any hearsay exception. Zelinsky
further objects on the grounds they bear no relevance to the issue at hand. Zelinsky further
objects to the declaration of Charles Ay on the grounds it lacks foundation. Zelinsky also
objects to General Order 129 as hearsay and irrelevant.

As plaintiff fails to cite to admissible evidence that disputes this fact, this fact is undisputed.
Further, the information cited by plaintiff does not establish that Zelinsky owned,
maintained, leased, managed or controlled any of the premises where plaintiff alleges he
performed work. Therefore, this fact is undisputed as to the premises owner/contractor
liability causes of action.

= a -17- -
DEFENDANT D. ZELINSKY AND SONS, INC'S REPLY TO PLAINTIFFS’ RESPONSE TO DEFENDANT
aaseooey ELINSKY AND SONS, INC'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
505.

3619-3. 2595aI Dw

28

Walswartl,
Feaphtin,
Bevis &

MeCath LP

22. Although requested in
Special Interrogatory No. 36, plaintiff
fails to provide the names and/or contact
information for any individuals with
knowledge of facts that support his
cause of action for — premises
ewner/contractor ability —_ against
Zelinsky.

Zelinsky’s Special Interrogatories to plaintiff,
Set Two, attached to the Lozada Declaration as
Exhibit F at 3:16-18; and plaintiffs responses to
Zelinsky’s Special Interrogatories, Set Two,
attached to the Lozada Declaration as Exhibit G
at 43:7-23.

y’s | 22,

Disputed, The cited evidence does not
support the purported fact.

In plaintiffs’ response to defendant's
Interrogatory, plaintiffs refers defendant to
plaintiffs’ prior response, in which plaintiffs
identify ROBERT ROSS, c/o
BraytontPurcell LLP, and co-worker
Robert Cantley, c/o Brayton+Purcell LLP.
(Plaintiffs’ Response to Defendant D.
Zelinsky & Sons, Inc.'s Special
Interrogatories, Set One, pp. 16:10-24.)

Defendant has not attempted to make any
showing that co-worker Robert Cantley, c/o
Brayton+Purcell LLP, does not have
knowledge of facts that support plaintiffs’
cause of action against defendant
ZELINSKY.

In order to shift the burden, the defendant
cannot simply assert lack of evidence.
Rather, the defendant must produce
evidence that one or more elements of
plaintiffs' causes of action “cannot be
established." (C.C.P. § 437 (0)(2);
Scheiding v, Dinwic ‘Oo.
(1999) 69 Cal.App.4th 64, 71-72; Villa y.
McFerren (1995) 35 Cal.App.4th 733;
emphasis added.) Argument alone is
insufficient. (Aguilar y. Atlantic Richfield
Co supra, at p, 855.) If a defendant
attempts to shift the burden by pointing to
factually devoid discovery responses or
insufficient deposition testimony, defendant
must also show that it has asked all the
questions which would elicit the facts or
lack of facts necessary for plaintiff to prove
his case:

While we might be able to presume that
Robert's answers to questions asked by other
parties were complete so far as they went,
we can infer nothing at all with respect to
questions which were neither asked nor
answered.

(Scheiding y. Dinwiddie Construction Co..
supra, at 81.)

Therefore, defendant fails to shift the burden
because defendant does not establish that co-
worker Robert Cantley, c/o Brayton+Purcell
LLP, cannot provide facts to support

plaintiffs’ claims.

-18-

DEFENDA)

D. ZELINSKY AND SONS, INC“S REPLY TO PLAINTIFES' RESPONSE TO DEFENDANT

D.ZBLINSKY AND SONS, INC.'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL PACTS

2384695.4

3619-32595,22. D. Zelinsky & Sons, Inc.’s Reply: Defendants object to plaintiff's statement on the ground
that the cited evidence is in response to a different interrogatory, and is therefore misleading
and misstates evidence. Plaintiff cites to a response to Special Interrogatory No. 8, not the
interrogatory specific to the premises owner contractor liability cause of action. There is no
evidence to dispute this fact. Therefore, this fact is undisputed.

oS © we NA A Bb

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Wosfonercth,
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Bevin &

MeCall, LLP

atvousane 51138

23. Although requested in  Zelinsky’s | 23.
Special Interrogatory No. 37, plaintiff
fails to provide information regarding
any documents that support his cause of
action for premises owner/contractor
liability against Zelinsky.

Zelinsky’s Special Interrogatories to plaintiff,
Set Two, attached to the Lozada Declaration as
Exhibit F at 3:19-21, and plaintiff’s responses to
Zelinsky’s Special Interrogatories, Set Two,
attached to the Lozada Declaration as Exhibit G
at 43:42-44:12.

-19-

Disputed. The cited evidence does not
support the purported fact.

In plaintiffs! response to defendant's
Interrogatory, plaintiffs refer defendant to
plaintiffs prior response, in which plaintiffs
identifies numerous documents to support
their cause of action against ZELINSKY for
premises owner/contractor liability,
including Mr. ROSS's deposition
transcripts in which he testified that he was
exposed to asbestos-containing KAISER
GYPSUM COMPANY, PACO
TEXTURES (KELLY MOORE PAINT
COMPANY) and HAMILTON
MATERIALS "Red Dot" joint compound
mixed and sanded by ZELINSKY employees
in his presence at 25 different job sites
between the 1960s and 1970s. (Plaintiffs'
Response to Defendant D, Zelinsky &
Sons, Inc.'s Special Interrogatories, Set
One, pp. 1:21-38:18.)

Plaintiffs further cite to information and
documents establishing the PACO brand
joint compound was asbestos-containing:
"Kelly-Moore purchased Paco Texture
Corporation in December 1960 and
manufactured drywall finishing compounds,
including joint compounds and wall texture
products. These drywall finishing
compounds, including joint com pounds and
wall texture products, contained asbestos at
all times relevant to this action and until at
least 1978. Plaintiffs further identify facts
stated in Union Carbide Corporation's
purchase order, shipping and invoice fonns
dating from 1964 to 1977, which state that
Kelly-Moore repeatedly purchased asbestos
fibers from Union Carbide Corporation for
use in its PACO drywall accessory
materials." (Plaintiffs' Response to
Defendant D, Zelinsky & Sons, Inc.'s
Special Interrogatories, Set Two, pp. 9:14-
IT)

DEFENDANT D. ZELINSKY AND SONS, INC'S REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANT
D.ZELINSKY AND SONS, INC'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS

354008. 4

H 3619-32595Watsworth,

ws

Moreover, plaintiffs cite to the deposition
transcripts and all exhibits attached thereto
of Douglas Merrill. "Mr. Merrill was
designated as Person(s) Most
Knowledgeable and Custodian(s) of
Records, both past and present, of KELLY-
MOORE, as well as corporate
representatives, both past and present, of
KELLY-MOORE, including, but not limited
to,(1n_Re Asbestos Litigation, Case No.
2004-03964 commencing on 5-31-2006 and
all subsequent dates; Shipyard and
Applicator Cases commencing on
November 1, 1984 and February 27, 1985.)
In Volume | of the deposition of Mr. Merrill
regarding Asbestos Litigation Case No.
2004-03964, Mr. Merrill states that "Paco
products contained asbestos from 1960-78
(qualified by "some" but read in context of
asbestos removal effort, clear that efforts to
remove asbestos did not commence until
early 70s and did not conclude until 1978"
(Volume I pg 144:1177:25) In Mr. Merrill's
deposition taken on 11/1/1984 he states that
PACO: interior drywall finishing products
which included: wail and ceiling texture, all
purpose taping, and all purpose topping
compound, all were asbestos-containing
starting in 1968, He said both the dry and
ready mix forms of all produets listed above
were asbestos-containing (Vol. 1 pg. 14:1-
25).

Mr. Merrill's deposition taken on 2/27/1985
he again states that starting in at least 1969
that PACO drywall products were asbestos-
containing (Volume | pg. 9:18-24). In the
deposition Frederick D, Marquardt (Carey v.
Fiberboard on September 30, 1981) he states
that from 1962-1976 PACO texture and
topping compound were asbestos-
containing. (Vol. 1 pg. 30:18-31:2)."
(Plaintiffs! Response to Defendant D.
Zelinsky & Sons, Inc.'s Special
Interrogatories, Set Two, pp. 13:1-26.)
Plaintiffs also cite to the Deposition
transcript of Willis Hamilton, taken
December 18, 2003, In Re: Complex
Asbestos Litigation (p. 18:20-23), in which
Mr. Hamilton testified that from 1959 until
January 1978, HAMILTON MATERIALS,
INC.'s products contained chrysotile
asbestos fiber. Plaintiffs identify the
deposition testimony and all of the attached
exhibits therein of Willis Hamilton, in his

_capacity as Custodian of Records for

DEFENDANT D. ZELINSKY AND SONS, INC’'S |

~20-

EPLY TO PLAINT

S' RESPONSE TO DEFENDANT

2. ZELINSKY AND SONS, INC'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS

23546951
3619-3.2593Cc 0 © YD A RB YW WL

Bm WN

28

Wabswertt,
Feachlin,

defendant HAMILTON MATERIALS,
INC., beginning on December 4, 1996, in
multiple cases (lead: ona Cunningham v.
Hamilton Materials, Inc., et al., Alameda
County Superior Court Case No. 751113-2),
reported by Atkinson-Baker, Inc., 5000
Birch Street, Suite 3000, Newport Beach,
California 92660 (714) 834-0121. This
deposition was also taken in In Re: Complex
Asbestos Litigation, San Francisco Superior
Court No. 828684, In Re: Complex Asbesto
Litigation, Alameda County Superior Court
Case No. 607734-9, and In Re: Shipyard
and Applicator Asbestos Cases, Alameda
County Superior Court Case No. 537868-7.
Mr. Hamilton testified that from 1959 to
1974, HAMILTON MATERIALS, INC.
did not market a non-asbestos taping
compound (Vol. 1, pg. 196:12-17.) Mr.
Hamilton testified that he does not believe
that HAMILTON MATERIALS, INC.
marketed an asbestos-free multi-purpose
joint compound prior to 1977. (Vol. 1,
pg. 197:16-22.) (Plaintiffs' Response to
Defendant D. Zelinsky & Sons, Inc.'s
Special Interrogatories, Set Two, pp. 26:18-
27) .

Plaintiffs cite to the General Order No, 129
Interrogatory Responses of Hamilton
Materials, Inc., Kelly-Moore Paint
Company, Inc. and Kaiser Gypsum
Company, (Plaintiffs' Response to
Defendant D. Zelinsky & Sons, Inc.'s
Special Interrogatories, Set Two, pp. 11:6-
1, PE:15S-17.) .

In its responses, Hamilton Materials, Inc.
admits its "Red Dot" joint compound
contained asbestos from 1957 through 1977.
(See Hamilton Materials, Inc.'s General
Ordet No. 129 Interrogatory Responses,
attached as Exhibit 5 to the Charles Ay
Declaration filed herewith.)

Kelly-Moore admits that its Paco brand joint
compound contained asbestos from 1958
through 1978. (See Kelly-Moore Paint
Company, Inc.'s General Order No. 129
Interrogatory Responses, attached as
Exhibit 7 to the Charles Ay Declaration
filed herewith.)

And Kaiser Gypsum admits its joint

21

Bovins &

MeCatl LLP DEFENDANT D. ZELINSKY AND SONS, INC’S
nani D.ZELINSKY AND SONS, INC’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS

2354693.)
3619-3.2505

EPLY TO PLAINTIFFS' RESPONSE TO DEFENDANT1 i ————o— throughout the 1960s until approximately
1975-3976, (See Kaiser Gypsum Company's

2 General Order No. 129 Interrogatory
Responses, attached as Exhibit 9 to the

3 Charles Ay Declaration filed herewith.)

4 Additionally, plaintiffs cite to a wealth of
documents and information, including

5 defense expert testimony, establishing that
the joint compound manufactured and

6 disturbed by ZELINSKY in Mr, ROSS's
presence from 1960 through the-1970s was

7 more likely than not asbestos-containing.
(Plaintiffs' Response to Defendant D.

8 Zelinsky & Sons, Inc.'s Special
Interrogatories, Set Two, pp. 23:23-28:2.)

9
ZELINSKY's statement is completely

10 unsupported by the cited evidence and

defendant chose to ignore the detailed

1 account plaintiff gave in his interrogatories
responses. Therefore, in failing to account

2 i for evidence presented by plaintiffs
establishing all elements of their claim

13 against ZELINSKY, defendant fails to shift

the burden and ZELINSKY's motion is a

4 non-starter.

5

6

7

8

9 | As plaintiff fails te cite to evidence that disputed this fact, this fact is undisputed. Further,

the information cited by plaintiff does not establish that Zelinsky owned, maintained, leased,
20 | managed or controlled any of the premises where plaintiff alleges he performed work.
Therefore, this fact is undisputed as to the premises owner/contractor liability causes of

21 action. _
24. Plaintiff has failed to identify or produce | 24. Disputed. The cited evidence does not
22 any admissible evidence which supports support the purported fact.
his premises owner/contractor liability
23 cause of action against Zelinsky. Defendant's “Supporting Evidence" does
not conform to C.R.C. No. 3.1350(d), which
24 |The pleadings on file in this action and Exhibits states that [c]itation to the evidence in
A through W of the Lozada Declaration. support of each material fact must include
25 reference to the exhibit, title, page and line
numbers." Defendant merely refers to
26 plaintiff's numerous discovery responses,
thus making it impossible to determine
27 which portion(s) of plaintiff's discovery
responses are factually devoid.
28 . In addition, defendant's “Supporting
“vrei -22- :
Bevias &

DANT D. ZELINSKY AND SONS, ING-S REPLY TO PLAINTIFFS’ RESPONSE TO DEFENDANT —

. DE ,
me LINSKY AND SONS, INC’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS

srramvnesaz Lr

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28

Watowortts
Branigan,
Bovine &

MeCall, Li

-23-

L transcripts and all exhibits attached thereto

Evidence," violates Cal. Rules of Court, rule
3.1350(f} and fails to cite page and line
numbers, consequently requiring this Court
to rifle through hundreds of pages of
“evidence.” and disabling plaintiffs ability to
properly respond to this overly broad,
vague, and argumentative statement,

At summary judgment, in order to shift the
burden, defendant cannot simply assert lack
of evidence. Rather, defendant must prove
that one or more elements of plaintiffs'
causes of action "cannot be established" or
that "there is a complete defense” thereto.
(C.C.P. § 437c(0)(2); Scheiding v. Dinwiddie
Construction Co. (1999) 69 Cal.App.4th 64,
71-72.

Plaintiffs’ discovery responses were not
factually devoid. Plaintiff stated he was
exposed to PACO TEXTURES (KELLY
MOORE PAINT COMPANY) and
HAMILTON MATERIALS joint compound
mixed and sanded by ZELINSKY
employees in his presence at 25 different job
sites between the 1960s and 1970s.
(Plaintiffs' Response to Defendant D.
Zelinsky & Sons, Inc.'s Special
Interrogatories, Set Two, pp. 1:21-38:18.

Plaintiffs further cite to information and
documents establishing the PACO brand
joint compound was asbestos-containing:
"Kelly-Moore purchased Paco Texture
Corporation in December 1960 and
manufactured drywall finishing compounds,
including joint compounds and wall texture
products. These drywall finishing,
compounds, including joint corn pounds and
wall texture products, contained asbestos at
all times relevant to this action and until at
least 1978. Plaintiffs further identify facts
stated in Union Carbide Corporation's
purchase order, shipping and invoice forms
dating from 1964 to 1977, which state that
Kelly-Moore repeatedly purchased asbestos
fibers from Union Carbide Corporation for
use in its PACO d