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

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                BRAYTON*PURCELL LLP
ATTORNEYS ATLAW
222 RUSH LANDING ROAD.

PO BOX 6169
NOVATO, CALIFORNIA 94948-6169

(415) 808-1555

oem NY KD A BY

10

ALAN R. BRAYTON, ESQ., 8.B. #73685
DAVID R. DONADIO, ESQ., 8.B. #154436
OREN P. NOAH, ESQ., S.B. #136310 ELECTRONICALLY
JAMIE A, NEWBOLD, ESQ., S.B. #207186 F I L E D
BRAYTON*PURCELL LLP

Attorneys at Law

222 Rush Landing Road

Superior Court of California,
County of San Francisco

P.O. Box 6169 APR 25 2013
Novato, California 94948-6169 Clerk of the Court
(415) 898-1555 BY: ALISON AGBAY
Tentative Ruling Contest Email: contestasbestosTR@braytonlaw.com Deputy Clerk

Attorneys for Plaintiffs
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

ASBESTOS
No. CGC-10-275731

ROBERT ROSS and JEAN ROSS,

Plaintiffs,
PLAINTIFFS' EVIDENTIARY

vs. OBJECTIONS

C.C. MOORE & CO. ENGINEERS;
Defendants as Reflected on Exhibit |
attached to the Summary Complaint

herein; and DOES 1-8500.

Date: May 9, 2013

Time: 9:30 a.m.

Dept: 503, Hon. Teri L. Jackson
Trial Date: June 10, 2013

Action Filed: December 17, 2010

eee

Plaintiffs respectfully request the Court to rule on plaintiffs’ evidentiary objections in
accordance with Cal. Rules of Court, rules 3.1352 and 3.1354, Reid v. Google, Inc. (2010) 50
Cal.4th $12, Vineyard Springs Estates, LLC v. Super. Ct. (Wyatt) (2004) 120 Cal. App.4th 633,

635; Sambrano v. City of San Diego (2001) 94 Cal. App.4th 225, 235; Laird v. Capital

Cities/ABC, Inc, (1998) 68 Cal.App.4th 727, 736, and Weil & Brown, Cal. Practice Guide:
Civil Procedure Before Trial (The Rutter Group 2005) 4 10:301.1, ch. 10-F.

Plaintiffs object to and move to strike defendant’s proffered evidence as follows:

1. Plaintiffs object to, and move to strike, the deposition transcripts of Mr. Steve
Steele, Exhibit 2 to the Declaration of Jeffrey Birkner, Ph. D. filed concurrently with
defendant’s moving papers.
Mt

KInjered: 1034) ylovid obj WEBCOR upd 1 JAN
PLAINTIFFS’ EVIDENTIARY OBJECTIONSCo em YW KD hw BR YY

10

Material Objected To: Grounds for Objection:

1. Deposition of Steve Steele in its entirety. 1. This deposition was taken in a matter
other than this case. The witness has not
been shown to be unavailable. Therefore
the testimony is inadmissible hearsay,
offered without exception.

Further, Mr. Steele testified in his
deposition that he did not become a
journeyman in the union until 1972, so any
opinions that he may have about the union
or its members prior to 1972 are lacking in
foundation, speculative, irrelevant and
therefore admissible. (See defense
Exhibit 2 to Birkner Declaration, p. 19:1-3.)

COURT’S RULING ON OBJECTION NO. 1:

Dated: Sustained:

Overruled:

2. Plaintiffs object to, and move to strike, the Declaration of Jeffrey Birkner, Ph.
D. in

its entirety.

Material Objected To: Grounds for Objection:
2. Birkner Declaration in its entirety. 2. The declaration lacks foundation, is

based upon speculation and hearsay, is
irrelevant and therefore inadmissible.
(Evid. Code §§ 210, 350, 403, 405, 702,
1200-1205.)

Birkner’s opinions regarding the potential
authenticity of The Ashestos Worker
journals lack foundation, are based upon
speculation and hearsay (Deposition of
Steve Steele ~ see objection Ne. 1 above),
are therefore irrelevant and inadmissible.

No foundation has been offered to show that
Birkner is capable of authenticating any
volumes of The Asbestos Worker journals,
let alone those at issue here.

COURT’S RULING ON OBJECTION NO. 2:

Dated: Sustained:
Overruled:
KNinjered 089% yliaid. ob WERCOR pd 2 JAN

PLAINTP

Y EVIDENTIARY OBJECTIONSCo em YW KD hw BR YY

10

3. Plaintiffs object to, and move to strike, the Declaration of Jeffrey Birkner, Ph.

D., paragraph 11 in its entirety, and corresponding exhibit.

Material Objected To:

3. Birkner Decl., paragraph 11, which
states as follows:

“Steve Steele testified that he is the
Custodian of Records for Local 16, and the
Custodian of Records for all categories of
documents requested per his deposition
notice, except for the journals from his
Union (i.c., the International Association of
Heat & Frost Insulators and Asbestos
Workers). Mr. Steve Steele testified that he
believes that the International Association
of Heat & Frost Insulators and Asbestos
Workers Union possesses copies of The
Ashestos Worker journals from the
beginning of its publication, but he did not
attempt to obtain ‘old’ copies of The
Asbestos Worker journals in response or in
preparation for his deposition. (Deposition
of Steve Steele, Vol. 1, 31:22-32:16, of

Grounds for Objection:

3, The declaration lacks foundation, is
based upon speculation and hearsay, is
irrelevant and therefore inadmissible.
(Evid. Code §§ 210, 350, 403, 405, 702,
1200-1205.)

Mr. Steele’s deposition was taken in a
matter other than this case. The witness has
hot been shown to be unavailable.
Therefore the testimony is inadmissible
hearsay, offered without exception.

Further, Mr. Steele testified in his
deposition that he did not become a
journeyman in the union until 1972, so any
opinions that he may have about the union
or its members prior to 1972 are lacking in
foundation, speculative, irrelevant and
therefore inadmissible. (See defense
Exhibit 2 to Birkner Declaration, p, 19:1-3.)

Exhibit 2.)”

COURT’S RULING ON OBJECTION NO. 3:

Dated: Sustained:
Overruled:

4, Plaintiffs object to, and move to strike, the Declaration of Jeffrey Birkner, Ph.

D,, paragraph 12 in its entirety, and corresponding exhibit.

Material Objected To:

4, Birkner Decl., paragraph 12, which
states as follows:

“At his deposition, Mr. Steve Steele
testified that The Asbestos Worker is the
official journal of the International
Association of Heat & Frost Insulators and
Asbestos Workers Union, of which Local
No. 16 is a part. Mr. Steele also indicated
that The Asbestos Worker is published by
the International Association of Heat &
Frost Insulators and Asbestos Workers

Union and is sent out several times per year.

dif

Kunjurod. £9349 pldhovid- obj: WEBCOR.wpd

Grounds for Objection:

4, The declaration lacks foundation, is
based upon speculation and hearsay, is
irrelevant and therefore inadmissible.
(Evid. Code §§ 210, 350, 403, 405, 702,
1200-1205.)

Mr. Steele’s deposition was taken ina
matter other than this case. The witness has
not been shown to be unavailable.
Therefore the testimony is inadmissible
hearsay, offered without exception.

JAN

PLAINTIFFS’ EVIDENTIARY OBJECTIONSCo em YW KD hw BR YY

10

He also believes that the journals are sent Further, Mr. Steele testified in his

on or about the date indicated on the deposition that he did not become a
journals to cach and every member of the journeyman in the union until 1972, so any
International Association of Heat & Frost opinions that he may have about the union
Insulators and Asbestos Workers Union. or its members prior to 1972 are lacking in
(Deposition of Steve Steele, Vol. 1, 37:12- foundation, speculative, irrelevant and
38:25, of Exhibit 2.)” therefore inadmissible. (See defense

Exhibit 2 to Birkner Declaration, p, 19:1-3.)
COURT’S RULING ON OBJECTION NO. 4:

Dated: Sustained:

Overruled:

5. Plaintiffs object to, and move to strike, the Declaration of Jeffrey Birkner, Ph.

D., paragraph 13 in its entirety.

Material Objected To: Grounds for Objection:

5. Birkner Decl., paragraph 13, which 5. The declaration lacks foundation, is

states as follows: based upon speculation and hearsay, is
irrelevant and therefore inadmissible.

“In response to the request for documents, (Evid. Code §§ 210, 350, 403, 405, 702,

Mr. Steele searched through his office, 1200-1205.)

filing cabinets and off-site storage for

responsive documents. Mr. Steele found Mr. Steele’s deposition was taken in a

and produced at his deposition various matter other than this case. The witness has

documents, inchiding cleven (11) editions not been shown to be unavailable.

of The Asbestos Worker that he had located Therefore the testimony is inadmissible

in his office. These journals were hearsay, offered without exception.

identified, marked, and attached to Mr.

Steele’s deposition as Exhibits EE! through Further, Mr. Steele testified in his

EEI1.” deposition that he did not become a

journeyman in the union until 1972, so any
opinions that he may have about the union
or its members prior to 1972 are lacking in
foundation, speculative, irrelevant and
therefore inadmissible. (See defense
Exhibit 2 to Birkner Declaration, p, 19:1-3.)

COURT’S RULING ON OBJECTION NO. 5:

Dated: Sustained:

Overruled:

6. Plaintiffs object to, and move to strike, the Declaration of Jeffrey Birkner, Ph.
D., paragraph 14 in its entirety.
Mt
Me

KInjered: 1034) ylovid obj WEBCOR upd 4 JAN
PLAINTIFFS’ EVIDENTIARY OBJECTIONSCo em YW KD hw BR YY

10

Material Objected To:

6. Birkner Decl., paragraph 14, which
states as follows:

“During his deposition, Mr. Steele was
shown and asked about (11) additional
issues of The Asbestos Worker that
preceded the ones he had produced. These
earlier issues of The Asbestos Worker were
marked and attached to Mr. Steele’s
transcript as Exhibits F through P.”

COURT’S RULING ON OBJECTION NO. 6:

Dated:

Grounds for Objection:

6. The declaration lacks foundation, is
based upon speculation and hearsay, is
irrelevant and therefore inadmissible.
(Evid. Code §§ 210, 350, 403, 405, 702,
1200-1205.)

Mr. Stecle’s deposition was taken in a
matter other than this case. The witness has
not been shown to be unavailable.
Therefore the testimony is inadmissible
hearsay, offered without exception.

Further, Mr. Steele testified in his
deposition that he did not become a
journeyman in the union until 1972, so any
opinions that he may have about the union
or its members prior to 1972 are lacking in
foundation, speculative, irrelevant and
therefore admissible. (See defense
Exhibit 2 to Birkner Declaration, p. 19:1-3.)

Sustained:

Overruled:

7. Plaintiffs object to, and move to strike, the Declaration of Jeffrey Birkner, Ph.

D., paragraph 15 in its entirety, and attached exhibit.

Material Objected To:

7. Birkner Decl., paragraph 15, which
states as follows:

“Mr. Steele consistently testified that these
earlier editions of The Asbestos Worker
appear to have the same format as The
Asbestos Worker journals he had produced,
and/or simply appear to be The Asbestos
Worker journals (Deposition of Steve
Steele, Vol. 1, 95:20-132:8 of Exhibit 2.)”

Kunjurod. £9349 pldhovid- obj: WEBCOR.wpd

Grounds for Objection:

7. The declaration lacks foundation, is
based upon speculation and hearsay, is
irrelevant and therefore inadmissible.
(Evid. Code §§ 210, 350, 403, 405, 702,
1200-1205.)

Mr. Steele’s deposition was taken in a
matter other than this case. The witness has
not been shown to be unavailable.
Therefore the testimony is inadmissible
hearsay, offered without exception.

Further, Mr. Steele testified in his
deposition that he did not become a
journeyman in the union until 1972, so any
opinions that he may have about the union
or its members prior to 1972 are lacking in
foundation, speculative, irrelevant and
therefore admissible. (See defense
Exhibit 2 to Birkner Declaration, p. 19:1-3.)

JAN

PLAINTIFFS’ EVIDENTIARY OBJECTIONSCo em YW KD hw BR YY

10

COURT’S RULING ON OBJECTION NO, 7:

Dated: Sustained:

Overruled:

8. Plaintiffs object to, and move to strike, the Declaration of Jeffrey Birkner, Ph.

D., paragraph 16 in its entirety, and attached exhibit.

Material Objected To:

8, Birkner Decl., paragraph 16, which
states as follows:

“Tn my review of the April, 1957, issue of
The Asbestos Worker, attached hereto as
Exhibit 3 and incorporated by reference,
(p21) reporting on an annual meeting of the
Western States Conference, noted the
statement that, ‘The problem of asbestosis
and silicosis were discussed at large
stemming from the report of Local 16 in
which it was revealed that eleven of its
members passed away last year. A large
number of men had definite symptoms of
the aforementioned hazards of our trade.
Most of the locals in attendance spoke on
this vital subject... At this time a motion
was made, seconded and passed that the
international continue to investigate the
causes of Asbestosis and allied lung
ailments caused by fibrous materials and to
determine what measure can be found to
combat and prevent theses disease. [sic]’”

Grounds for Objection:

8. The declaration lacks foundation, is
based upon speculation and hearsay, is
irrelevant and therefore inadmissible.
(Evid. Code §§ 210, 350, 403, 405, 702,
1200-1205.)

No foundation has been offered to show that
Birkner is capable of authenticating any
volumes of The Ashestos Worker journals,
let alone those at issue here. This statement
lacks foundation, is based upon speculation
and hearsay (Steve Steele’s deposition - see
objection No, 1 above), and is therefore
irrelevant and inadmissible.

COURT’S RULING ON OBJECTION NO. 8:

Dated: Sustained:

Overruled:

9. Plaintiffs object to, and move to strike, the Declaration of Jeffrey Birkner, Ph.

D., paragraph 17 in its entirety, and attached exhibit.

Material Objected To:

9. Birkner Decl., paragraph 17, which
states as follows:

“In my review of the October, 1957, issue
of The Asbestos Worker, attached hereto as
Exhibit 4 and incorporated by reference,
(pl). the magazine contained the following

Kunjurod. £9349 pldhovid- obj: WEBCOR.wpd

Grounds for Objection:

9. The declaration lacks foundation, is
based upon speculation and hearsay, is
irrelevant and therefore inadmissible.
(Evid. Code §§ 210, 350, 403, 405, 702,
1200-1205.)

No foundation has been offered to show that

JAN

PLAINTIFFS’ EVIDENTIARY OBJECTIONSCo em YW KD hw BR YY

10

statement: ‘Health Hazards: Being well
aware of the health hazards in the Asbestos
Industry, President Sickles requested for the
General Executive Board to make a study of
the health hazards, with authority to appoint
sub-committees, and to employ the services
of such medial authorities, that will enable
the board to adopt any policies that will
tend to protect the health of our
International membership,”

Birkner is capable of authenticating any
volumes of The Asbestos Worker journals,
let alone those at issue here. This statement
lacks foundation, is based upon speculation
and hearsay (Steve Steele’s deposition - see
objection No. | above), and is therefore
irrelevant and inadmissible.

COURT’S RULING ON OBJECTION NO. 9:

Dated: Sustained:

Overruled:

10. Plaintiffs object to, and move to strike, the Declaration of Jeffrey Birkner, Ph.

D., paragraph 18 in its entirety, and attached exhibit.

Material Objected To:

10. Birkner Decl., paragraph 18, which
states as follows:

“Tn my review of the April, 1958, issue of
The Asbestos Worker, attached hereto as
Exhibit 5 and incorporated by reference,
(p22), the magazine reported, ‘The health
hazards of the trade were discussed an
Local No. 16 presented its case relative to
the vital ‘capacity test’ given through its
health and welfare program. . . The results
are very startling and should be the concern
of each member of our trade.”

Grounds for Objection:

10. The declaration lacks foundation, is
based upon speculation and hearsay, is
irrelevant and therefore inadmissible.
(Evid. Code §§ 210, 350, 403, 405, 702,
1200-1205.)

No foundation has been offered to show that
Birkner is capable of authenticating any
volumes of The Asbestos Worker journals,
let alone those at issue here. This statement
lacks foundation, is based upon speculation
and hearsay (Steve Steele’s deposition - see
objection No. | above), and is therefore
irrelevant and inadmissible.

COURT’S RULING ON OBJECTION NO. 10:

Dated: Sustained:

Overruled:

11. Plaintiffs object to, and move to strike, the Declaration of Jeffrey Birkner, Ph.
D., paragraph 19 in its entirety, and attached exhibit.
Grounds for Objection:

11. The declaration lacks foundation, is
based upon speculation and hearsay, is
irrelevant and therefore inadmissible.
(Evid. Code §§ 210, 350, 403, 405, 702,
1200-1205.)

Material Objected To:

11. Birkner Decl., paragraph 19, which
states as follows:

“In my review of the November, 1964, issue
of The Asbestos Worker, attached hereto as

Kunjurod. £9349 pldhovid- obj: WEBCOR.wpd 7 JAN
PLAINTIFFS’ EVIDENTIARY OBJECTIONSCo em YW KD hw BR YY

10

Exhibit 6 and incorporated by reference,
(p5), reported on the findings from Dr.
irwin Selikoff, who analyzed the results of a
number of studies or cancers in asbestos
workers: ‘In addition, an unexpectedly large
number of men died of cancer of the
stomach, colon or rectum (29 compared
with 9.4 expected). . .after reviewing the
problem and adding data of his own,
concluded that lung cancer was a specific
industrial hazard of heavily exposed
asbestos workers.’”

COURT’S RULING ON OBJECTION NO. 11:

Dated:

No foundation has been offered to show that
Birkner is capable of authenticating any
volumes of The Asbestos Worker journals,
let alone those at issue here. This statement
lacks foundation, is based upon speculation
and hearsay (Steve Steele’s deposition - see
objection No. 1 above), and is therefore
irrelevant and inadmissible.

Sustained:

Overruled:

12. Plaintiffs object to, and move to strike, Exhibits 3-6 to the Declaration of

Jeffrey Birkner, Ph. D..

Material Objected To:
12. Birkner Decl., Exhibits 3-6

Grounds for Objection:

12. Exhibits 3-6 are purportedly copies of
The Asbestos Worker journals. However,
the documents have not been properly
authenticated, and are therefore
inadmissible hearsay. (Evid. Code §§ 210,
350, 403, 405, 702, 1200-1205.)

No foundation has been offered to show that
Birkner is capable of authenticating any
volumes of The Asbestos Worker journals,
let alone those at issue here.

COURT’S RULING ON OBJECTION NO. 12:

Dated: Sustained:
Overruled:
13. Plaintiffs object to, and move to strike, the Declaration of Jeffrey Birkner, Ph.
D., paragraph 23.

Material Objected To:

13. Birkner Decl., paragraph 23, which
states as follows:

“Based on my review of these issues of The
Asbestos Worker, as well as the depositions

Kunjurod. £9349 pldhovid- obj: WEBCOR.wpd

Grounds for Objection:

13. The declaration lacks foundation, is
based upon speculation and hearsay, is
irrelevant and therefore inadmissible.
(Evid. Code §§ 210, 350, 403, 405, 702,
1200-1205.)

JAN

PLAINTIFFS’ EVIDENTIARY OBJECTIONSCo em YW KD hw BR YY

10

of Merle Steele and Steve Steele, I opine
that The Asbestos Worker quarterly journal
distributed by the International Association
of Heat & Frost Insulators and Asbestos
Workers who, in turn, apparently provided
it to local unions, including Local 16, and
distributed to its members. It is also my
opinion that The Asbestos Worker had been
reporting on the potential health hazards of
asbestos as early as 1957 and continuing
through 1964, at least.”

No foundation has been offered to show that
Birkner is capable of authenticating any
volumes of The Asbestos Worker journals,
let alone those at issue here. This statement
lacks foundation, is based upon speculation
and hearsay (Steve Steele’s deposition - see
objection No. 1 above), and is therefore
irrelevant and inadmissible.

COURT’S RULING ON OBJECTION NO. 13:

Dated:

Dated: 4/25/13

Kunjurod. £9349 pldhovid- obj: WEBCOR.wpd

Sustained:

Overruled:

BRAYTON*PURCELL LLP

By: /s/ Jamie A, Newbold

Jamie AV Newbold
Attorneys for Plaintiffs

JAN

PLAINTIFFS’ EVIDENTIARY OBJECTIONS