On December 17, 2010 a Motion,Ex Parte was filed involving a dispute between Ross, Jean, Ross, Robert, and Acco Engineered Systems, Inc., Advanced Mechanical, Advance Mechanical Contractors, Inc., Air Systems Mechanical Contractor, A & K Heating Company, Inc., Albay Construction Company, Allen-Simmons Heating & Sheet Metal Company Inc., Allied Fire Protection, Allied Sprinkler Company, Inc., Allsberry Mechanical Corporation, Anderson, Rowe & Buckley, Inc., Associated Insulation Of California, A. Teichert & Son, Inc., Balliet Bros. Construction Corporation, Banner Drywall & Painting Co. Inc., Barnes Construction Co., Bayer Cropscience Inc., Bayer Cropscience, Inc., Successor To Amchem, Bell Products Inc., Beta Mechanical Contractors, L.P., Bragg Investment Company, Inc., Cahill Construction Co., Inc., Cahill Construction Services, Inc., Cahill Contractors, Inc., California Drywall Co., Castro Construction, Inc., C.C. Moore & Co. Engineers, Cincinnati Valve Company, Cjr Plastering, Clausen-Patten, Inc., Clausen-Patten, Inc., A Dissolved Corporation, Climate Air, Inc., Climate Control Co., Inc., Collins Electrical Company, Inc., Commair Mechanical Services, Consolidated Insulation, Inc., Cosco Fire Protection, Inc., Cosco Sprinkler, Critchfield Mechanical, Inc., C & R Plastering, Inc., Csk Auto, Inc., Cupertino Electric, Inc., Delucchi Sheet Metal Works, Dilland Sederberg Plumbing, Does 1-8500, Domco Products Texas Inc., Domco Products Texas, L.P., Donovan Construction, Dorn Refrigeration, Dorn Refrigeration And Air Conditioning, Dpr Construction, Duro Dyne Corporation, D.W. Nicholson Corporation, D. Zelinsky & Sons, Inc., Emil J. Weber Electric Co., Erwin Mechanical Inc., Ex- Fme, Inc. (Fka Fischbach And Moore Electric,, Fairmont Hotel Company, Fluor Corporation, Foley Electric Co., Foley Electric, Inc., Fuller Floors, General Mills, Inc., Giampolini & Co., Graybar Electric Company, Inc., Hanson Permanente Cement, Inc. Formerly Known As, Harold Beasley Plumbing And Heating, Inc., Harry Lee Plumbing & Heating, H & C Investment Associates, Inc., Henry C. Beck Company, Imperial Plastering & Drywall, Insulation Specialties, Inc., James A. Nelson Co., Inc., Johnson Controls, Inc., Jones Plastering Company, Joseph Bruno Sheet Metal Co., Inc., J.T. Thorpe & Son, Inc., J.W. Mcclenahan Company, J.W. Mcclenahan Company, Inc., Kentile Floors, Inc., Laub Sheet Metal Works, Lone Star Industries, Inc., Mack Construction Co., Magee, Robert, Malm Metal Products, Inc., Marine Engineering And Supply Company, Marshco Auto Parts, Inc., Mattock Construction Company, Mcclure Electric, Inc., Metropolitan Life Insurance Company, Michael Brothers, Midstate Mechanical, Inc., Mitchell Bros. Truck Lines, Inc., Monsanto Company, Sued As "Pharmacia Corporation", Oakfabco, Inc., Ortho-Craft, Pacific Fireproofing, Pacific Mechanical Corporation, Parker Insulation Contracting & Supply Co. Inc., Perini Corporation, Pharmacia Corporation, Which Will Do Business In, Pribuss Engineering, Pribuss Engineering, Inc., Raymond Interior Systems-North, Red Top Electric Co. Emeryville, Inc., Robert Magee, Rollie R. French, Inc., Rollins Construction, Rountree Plumbing & Heating Inc., Scott Co. Of California, S F L, Inc., S.J. Amoroso Construction Co., Inc., Slakey Brothers, Inc., Sugden Engineering Co., Swinerton Builders, Temper Insulation, Temporary Plant Cleaners, Inc., Texaco, Inc., The Goodyear Tire & Rubber Company, The W.W. Henry Company, Tuttle And Bailey Corp, Van Mulder Sheetmetal, Van-Mulder Sheet Metal, Inc., Walnut Creek Sheet Metal, Furnace & Air, W.C. Thomason, W.C. Thompson, Webcor Builders, Inc., Westburne Supply, Inc., Willard Electric, Wright Schuchart Harbor, Wright Schuchart Harbor Company, Ross, Jean, Ross, Robert, for civil in the District Court of San Francisco County.
For full print and download access, please subscribe at https://www.trellis.law/.
Please wait a moment while we load this page.
Preview
BRAYTON*PURCELL LLP ATTORNEYS AT LAW 222 RUSH LANDING ROAD PO BOX 6169 NOVATO, CALIFORNEA 94948-6169 4415) 808-1585 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 ASHLEY J. BENSON, ESQ., S.B. #276326 BRAYTON%PURCELL ie F I L E D Attorneys at Law 222 Rush Landing Road Superior Court of California, County of San Francisco P.O. Box 6169 APR 26 2013 Novato, California 94948-6169 Clerk of the Court (415) 898-1555 BY: WILLIAM TRUPEK Tentative Ruling Contest Email: contestasbestosTR@braytonlaw.com Deputy Clerk Attorneys for Plaintiffs SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO ROBERT ROSS and JEAN ROSS, ASBESTOS No, CGC-10-275731 PLAINTIFFS’ EVIDENTIARY OBJECTIONS TO DEFENDANT CRITCHFIELD MECHANICAL, INC.’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Plaintiffs, vs. C.C. MOORE & CO. ENGINEERS; Defendants as Reflected on Exhibit | attached to the Summary Complaint herein; and DOES 1-8500. eee Date: May 9, 2013 Time: 9:30 a.m. Dept: $03, Hon. Teri L. Jackson Trial Date: June 10, 2013 Action Filed: December 17, 2010 Plaintiffs respectfully request that this Court rule on plaintiffs’ evidentiary objections in accordance with California Rules of Court, Rules 3.1352 and 3.1354, 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) 10:301.1, ch. 10-F. Plaintiffs object to and move to strike defendant’s proffered evidence as follows: 1. Plaintiff objects to, and moves to strike, in it’s entirety the declaration of Kyle Dotson, attached to defendant’s motion for summary judgement. KAinjuned:t92-Nialdiobj-ovid-CRIMEC-mgj-sa. pad 1 ASB PLAINTIFFS! EVIL OBJECTIONS TO DEFENDANT CRITCHFIELD MECHANICAL, INC.S MOTION FOR SUMMARY JUDGMENT OR. IN THE ALTERNATIVE, SUMMARY ADJUDICATIONCo em YW KD hw BR YY 10 Material Objected To: 1. The entirety of the declaration of Kyle Dotson, attached to defendant’s motion for summary judgement. COURT’S RULING ON OBJECTION NO. 1: Dated: Grounds for Objection: 1. Lacks foundation. Mr. Dotson has not laid a proper foundation for his statements and thus has failed to give teason that he is competent to make any such a statement as required by Ev. Code §702(a). He has stated minimal qualifications, none of which are specific to asbestos or the handling of asbestos. Sustained: Overruled: 2. Plaintiff objects to, and moves to strike, paragraph five (5) of the declaration of Kyle Dotson, attached to defendant’s motion for summary judgement. Material Objected To: 2, Paragraph five (5) of the declaration of Kyle Dotson, attached to defendant’s motion for summary judgement. COURT’S RULING ON OBJECTION NO, 2: Grounds for Objection: 2. Lacks foundation. Mr. Dotson has not laid a proper foundation for his statements and thus has failed to give reason that he is competent to make any such a statement as required by Ev. Code §702(a). He has stated minimal qualifications, none of which are specific to asbestos or the handling of asbestos. Merely stating “it is well established” is not sufficient to make a showing of such. In addition to failing to show his qualifications specific to asbestos, Mr. Dotson also fails to show what scientific research he has conducted or reviewed to reach such a broad and conclusory statement. Dated: Sustained: Overruled: if Hl Hl KAinjuned:t92-Niplobjevid 2 ASB PLAINTIPFS' EVID OBJEC TIONS TO DEFENDANT CRITCHFIELD MECHANICAL, INC'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONCO OW YN DR A BY De RM NR NY NYY BR Ye Be Be Se Se ee Be Be Be eo WA A PB OH se So we IY DR mA BW BW ee oS 3. Plaintiff objects to, and moves to strike, paragraph six (6) of the declaration of Kyle Dotson, attached to defendant’s motion for summary judgement. Material Objected To: Grounds for Objection: 3. Paragraph six (6) of the declaration of 3. Lacks foundation. Kyle Dotson, attached to defendant’s Mr. Dotson has not laid a proper foundation. motion for summary judgement. for his statements and thus has failed to give reason that he is competent to make any such a statement as required by Ev. Code §702(a). He has stated minimal qualifications, none of which are specific to asbestos or the handling of asbestos. Merely stating “it is well established” is not sufficient to make a showing of such. In addition to failing to show his qualifications specific to asbestos, Mr. Dotson also fails to show what scientific research he has conducted or reviewed to reach such a broad and conclusory statement. COURT’S RULING ON OBJECTION NO. 3: Dated: Sustained: Overruled: 4, Plaintiff objects to, and moves to strike, paragraph seven (7) of the declaration of Kyle Dotson, attached to defendant’s motion for summary judgement. Material Objected To: Grounds for Objection: 4, Paragraph seven (7) of the declaration of 4. Lacks foundation. Kyle Dotson, attached to defendant’s Mr. Dotson has not laid a proper foundation motion for summary judgement. for his statements and thus has failed to give reason that he is competent to make any such a statement as required by Ev. Code §702(a). He has stated minimal qualifications, none of which are specific to asbestos or the handling of asbestos. Merely stating “it is well established” is not sufficient to make a showing of such. In addition to failing to show his qualifications specific to asbestos, Mr. Dotson also fails to show what scientific research he has conducted or reviewed to reach such a broad and conclusory statement, 3 AB OBJECTIONS TO DEFENDANT CRITCHFIELD MECHANICAL, INC.“ MOTION FOR SUMMARY ERNATIVE, SUMMARY ADJUDICATIONCo em YW KD hw BR YY 10 COURT’S RULING ON OBJECTION NO, 4: Dated: Sustained: Overruled: 5. Plaintiff objects to, and moves to strike, paragraph eight (8) of the declaration of Kyle Dotson, attached to defendant’s motion for summary judgement. Material Objected To: Grounds for Objection: 5. Paragraph cight (8) of the declaration of 5. Lacks foundation and irrelevant. Kyle Dotson, attached to defendant’s Mr. Dotson has not laid a proper foundation motion for summary judgement. for his statements and thus has failed to give treason that he is competent to make any such a statement as required by Ev, Code §702(a). He has stated minimal qualifications, none of which are specific to asbestos or the handling of asbestos. Merely stating “it is well established” is not sufficient to make a showing of such. In addition to failing te show his qualifications specific to asbestos, Mr. Dotson also fails to show what scientific research he has conducted or reviewed to reach such a broad and conclusory statement. Additionally, it is irrelevant of what knowledge the insulation trade had of the tisks associated with asbestos, as there is no showing of this knowledge being imputed on plaintiff. The standard at issue is what defendant knew or should have known. Even if plaintiff himself knew about the tisks associated with asbestos, the sophisticated user defense does not amount to a complete defense and defendant would still be required to act with reasonable care. COURT’S RULING ON OBJECTION NO. 5: Dated: Sustained: Overruled: if Hl Hl KAinjuredt 3 Wrplobj evi 4 ASB PLAINTIPFS' EVID OBJEC TIONS TO DEFENDANT CRITCHFIELD MECHANICAL, INC'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONCo em YW KD hw BR YY 10 6. Plaintiff objects to, and moves to strike, paragraph nine (9) of the declaration of Kyle Dotson, attached to defendant’s motion for summary judgement. Material Objected To: 6. Paragraph nine (9) of the declaration of Kyle Dotson, attached to defendant’s motion for summary judgement. COURT’S RULING ON OBJECTION NO. 6: Dated: Grounds for Objection: 6. Lacks foundation and misleading. Mr. Dotson has not laid a proper foundation for his statements and thus has failed to give reason that he is competent to make any such a statement as required by Ev. Code §702(a). He has stated minimal qualifications, none of which are specific to asbestos or the handling of asbestos. Merely stating “absent evidence to the contrary” is not sufficient to make a showing of such. In addition to failing to show his qualifications specific to asbestos, Mr. Dotson also fails to show what scientific research he has conducted or teviewed to reach such a broad and conclusory statement. Additionally, plaintiffs have produced expert Richard Cohen, M.D., M.P.H., who unlike Mr. Dotson has the proper foundation and the research toe support his opinions, who present evidence to the contrary of Mr. Dotson’s unfounded beliefs. Sustained: Overruled: 7. Plaintiffs object to, and move to strike, the deposition transcripts of Mr. Arthur Klimack, Exhibit Q to the Declaration of George S. Sullivan in Support of Defendant’s Notice of Motion and Motion for Summary Judgment or, in the alternative, Summary Adjudication served concurrently with defendant’s moving papers. Material Objected To: 10. Deposition of Arthur Klimack in its entirety. dit 5 KAlnjureds F930 pio. Grounds for Objection: 10. 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. AIB PLAINTIPFS' EVID OBJEC TIONS TO DEFENDANT CRITCHFIELD MECHANICAL, INC'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONCo em YW KD hw BR YY 10 Further, Mr. Klimack in no way has shown the knowledge he possessed along with any knowledge the Local 16 union possessed was conveyed upon plaintiff, so any opinions that he may have about the union or its members are lacking in foundation, speculative, irrelevant and therefore inadmissible. COURT’S RULING ON OBJECTION NO. 7: Dated: Sustained: Overruled: 8. Plaintiffs object to, and move to strike, the deposition transcripts of Mr. Arthur Klimack, Exhibit R to the Declaration of George S. Sullivan in Support of Defendant’s Notice of Motion and Motion for Summary Judgment or, in the alternative, Summary Adjudication served concurrently with defendant’s moving papers. Material Objected To: Grounds for Objection: 8. Deposition of Arthur Klimack in its 8. This deposition was taken in a matter entirety. other than this case. The witness has not been shown to be unavailable. Therefore the testimony is inadmissible hearsay, offered without exception. Further, Mr. Klimack in no way has shown the knowledge he possessed along with any knowledge the Local 16 union possessed was conveyed upon plaintiff, so any opinions that he may have about the union or its members are lacking in foundation, speculative, irrelevant and therefore inadmissible. COURT’S RULING ON OBJECTION NO. 8: Dated: Sustained: Overruled: Me Mt Me KAinjuned:t92-Niplobjevid 6 ASB PLAINTIPFS' EVID OBJEC TIONS TO DEFENDANT CRITCHFIELD MECHANICAL, INC'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONCo em YW KD hw BR YY 10 9. Plaintiffs object to, and move to strike The Asbestos Worker from April 1957 Exhibit S to the Declaration of George S. Sullivan in Support of Defendant’s Notice of Motion and Motion for Summary Judgment or, in the alternative, Summary Adjudication served concurrently with defendant’s moving papers in its entirety. Material Objected To: Grounds for Objection: 9. The Asbestos Worker from April 1957 in 9. The publication lacks foundation, is its entirety. based upon speculation and hearsay, is irrelevant and therefore inadmissible, (Evid. Code §§ 210, 350, 403, 405, 702, 1200-1205.) Mr. Sullivan’s opinions regarding the potential authenticity of The Asbestos Worker journals lack foundation, are based upon. speculation and hearsay, are therefore irrelevant and inadmissible. No foundation has been offered to show that Mr. Sullivan is capable of authenticating any volumes of The Asbestos Worker journals, let alone those at issue here. COURT’S RULING ON OBJECTION NO, 9: Dated: Sustained: Overruled: 10. Plaintiffs object to, and move to strike The Asbestos Worker trom October1957 Exhibit T to the Declaration of George S. Sullivan in Support of Defendant’s Notice of Motion and Motion for Summary Judgment or, in the alternative, Summary Adjudication served concurrently with defendant’s moving papers in its entirety. Material Objected To: Grounds for Objection: 10. The Asbestos Worker from October 10. The publication lacks foundation, is 1957 in its entirety. based upon speculation and hearsay, is irrelevant and therefore inadmissible. (Evid. Code §§ 210, 350, 403, 405, 702, 1200-1305.) Mr. Sullivan’s opinions regarding the potential authenticity of The Asbestos Worker journals lack foundation, are based upon speculation and hearsay, are therefore irrelevant and inadmissible. Me KAinjuna 02.9) Ceah-evii 7 AB PLAINTIFFS! EVIL OBJECTIONS £0 DEFENDANT CRITCUFIELD MECITANICAL, INC."S MOTION FOR SUMMARY JUDGMENT OR. IN THE ALTERNATIVE, SUMMARY ADJUDICATIONCo em YW KD hw BR YY 10 No foundation has been offered to show that Mr. Sullivan is capable of authenticating any volumes of The Asbestos Worker journals, let alone those at issue here. COURT’S RULING ON OBJECTION NO. 10: Dated: Sustained: Overruled: 11. Plaintiffs object to, and move to strike The Asbestos Worker from April 1958 Exhibit U to the Declaration of George S. Sullivan in Support of Defendant’s Notice of Motion and Motion for Summary Judgment or, in the alternative, Summary Adjudication served concurrently with defendant’s moving papers in its entirety. Material Objected To: Grounds for Objection: 11. The Asbestos Worker from April 1958 11. The publication lacks foundation, is in its entirety. based upon speculation and hearsay, is irrelevant and therefore inadmissible. (Evid. Code §§ 210, 350, 403, 405, 702, 1200-1205.) Mr. Sullivan’s opinions regarding the potential authenticit iy of The Asbestos Worker journals lack foundation, are based upon speculation and hearsay, are therefore irrelevant and inadmissible. No foundation has been offered to show that Mr. Sullivan is capable of authenticating any volumes of The Asbestos Worker journals, let alone those at issue here. COURT’S RULING ON OBJECTION NO. 11: Dated: Sustained: Overruled: 12. Plaintiffs object to, and move to strike The Asbestos Worker from May 1959 Exhibit V to the Declaration of George S. Sullivan in Support of Defendant’s Notice of Motion and Motion for Summary Judgment or, in the alternative, Summary Adjudication served concurrently with defendant’s moving papers in its entirety. dif KAinjuna 02.9) Ceah-evii 8 AB PLAINTIFFS! EVIL OBJECTIONS £0 DEFENDANT CRITCUFIELD MECITANICAL, INC." MOTION FOR SUMMARY JUDGMENT OR. IN THE ALTERNATIVE, SUMMARY ADJUDICATIONCo em YW KD hw BR YY 10 Material Objected To: Grounds for Objection: 12. The Asbestos Worker from May 1959 in 12. The publication lacks foundation, is its entirety. based upon speculation and hearsay, is irrelevant and therefore inadmissible. (Evid. Code §§ 210, 350, 403, 405, 702, 1200-1205.) Mr. Sullivan’s opinions regarding the potential authenticity of The Asbestos Worker journals lack foundation, are based upon speculation and hearsay, are therefore irrelevant and inadmissible. No foundation has been offered to show that Mr. Sullivan 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 Asbestos Worker from February 1963 Exhibit W to the Declaration of George S. Sullivan in Support of Defendant’s Notice of Motion and Motion for Summary Judgment or, in the alternative, Summary Adjudication served concurrently with defendant’s moving papers in its entirety. Material Objected To: Grounds for Objection: 13. The Ashestos Worker from February 13. The publication lacks foundation, is 1963 in its entirety. based upon speculation and hearsay, is irrelevant and therefore inadmissible. (Evid. Code §§ 210, 350, 403, 405, 702, 1200-1205.) Mr. Sullivan's opinions regarding the potential authenticity of The Ashestos Worker journals lack foundation, are based upon speculation and hearsay, are therefore irrelevant and inadmissible. No foundation has been offered to show that Mr. Sullivan is capable of authenticating any volumes of The Asbestos Worker journals, let alone those at issue here. dif KAinjuna 02.9) Ceah-evii 9 AB PLAINTIFFS! EVIL OBJECTIONS £0 DEFENDANT CRITCUFIELD MECIANICAL, INC."S MOTION FOR SUMMARY JUDGMENT OR. IN THE ALTERNATIVE, SUMMARY ADJUDICATIONCo em YW KD hw BR YY 10 COURT’S RULING ON OBJECTION NO. 13: Dated: Sustained: Overruled: Dated: _ April 25, 2013 BRAYTON“PURCELL LLP By: /s/ Ashley J. Benson Ashley J. Benson Attorneys for Plaintiff KAinjuna 02.9) Ceah-evii 10 AIB PLAINTIPFS' EVID OBJEC TIONS TO DEFENDANT CRITCHFIELD MECHANICAL, INC'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION