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

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                                “|| Ybacon

PATRICIA G. ROSENBERG, SBN 154820 :

HAAS & NAJARIAN, LLP :
58. Maiden Lane, Second Floor 2.
San Francisco, CA 94108. -
Telephone: 415.788. 6330:

JAMES N. “SINUNU, SBN 62802
JUNIPER BACON, SBN 256687,
SINUNU BRUNI LLP

333 Pine Street, Suite 400 -

-|| San Francisco, CA 94104

Telephone: 415.362.9700
Facsimile: 415.362.9707
jsinunu@sinunubruni.com
inunubruni. com

Attorneys for Defendant. :
MCCLURE ELECTRIC, INC.

S ELECTRONICALI yo

FILED

Superior Court of Califol
County of San Francist

“MAY 02 201
Clerk.of the Cou

. BY: EDNALEEN JAVIER

Deputy

_- SUPERIOR COURT OF THE STATE OF CALIFORNIA
CITY. AND COUNTY OF SAN FRANCISCO-UNLIMITED JURISDICTION

ROBERT ROSS and JEAN ROSS,

- Plaintiffs,

C.C. MOORE & CO. ENGINEERS; ©
Defendants as Reflected on Exhibit:1

attached to the Summary Complaint
||/herein; and DOES 1-500.

Defendants.

at a aid i Na a at att

oN

Case No: cac- 10-275731

REPLY. ‘BRIEF IN SUPPORT OF. a
DEFENDANT. MCCLURE ELECTRIC, :

-AINC.’S MOTION FOR SUMMARY

JUDGMENT OR, IN THE
ALTERNATIVE, SUMMARY ~

ADJUDICATION

Date: May 9, 2013 ~
Time: 9:30 am. :

503. : :
Ju le Hon. Terri L. Jackson

~ Complaint Filed: December 1, 2010
Taal. Date: June. 10, 2013.

2O.8

“REPLY BRIEF IN SUPPORT.OF. MCCUURE ELECTRIC, INC'S MOTION FOR SUMMARY JUDGMENT ° 2

fay

ores

Clerk.Defendant. MCCLURE . ELECTRIC, “INC. (hereinafter -“MCCLURE”), . hereby
submits this brief in reply to Plaintiffs Robert and Jean Ross's (herein. collectively .
Plaintiffs") opposition to MCCLURE's Motion for Summary Judgment in the above-
captioned matter, pursuant to Code of Civil Procedure Section 437c. we
L INTRODUCTION :

“In its opening brief, Defendant MCCLURE met the standard set forth i in Aguilr v.
Atlantic. Richfield, Co. (2001) 25 Cal4th 826, and has shown based on ‘extensive and
deliberate discovery, that Plaintiffs will be unable to establish that Plaintiff Robert Ross
("Plaintiff") was exposed to asbestos by an act or omission of MCCLURE, much less that
any exposure allegedly attributable to MCCLURE was a substantial factor in causing his
colon cancer. ~ : : : :

Based on facts learned in discovery, Plaintiffs claimed that Robert Ross was exposed ~
to asbestos as result of activities by MCCLURE at only one job location: the Mills Building
in San Francisco, CA, (UMF No. 7). Specifically, plaintiffs claimed that MCCLURE

‘|| electricians exposed him to asbestos by disturbing previously sprayed asbestos-containing

overhead fireproofing while setting their pipe and conduit at the Mills Building between
1967 and 1972. (UMF No. 8). However, MCCLURE cleanly demonstrated that there was
no asbestos-containing fireproofing at the Mills Building, nor indeed spray-on fireproofing of
any kind. Plaintiff's opposition did nothing to contradict that evidence and therefore was an
admission that MCCLURE’s evidence regarding | fireproofing at Mills is uncontradicted and

|| proven. Based on that state of the evidence, plaintiff has not shown that MCCLURE did

anything to expose plaintiff to asbestos.

In their opposition, plaintifts did nothing to counter the very specific facts ‘offered by
MCCLURE regarding the State of the ceilings at the Mills Building. -No expert declaration
was filed. No co-worker identified a product, Rather, in a bizarre counter, plaintiff f filed his
own declaration with nothing but conjecture, saying now, in an effort to raise a triable i issue
of material fact that, well, it ‘must not have been the Mills Building after all, but siving no
alternative date, place, employer or job. : ma

~ To survive summary judgment, Plaintiffs must show ‘that the ‘fireproofing allegedly
disturbed by. MCCLURE i in Plaintiffs presence at the now unknown jobsite over the course

REPLY. BRIEF IN SUPPORT OF MCCLURE ELECTRIC, INC.'S MOTION FOR SUMMARY JUDGMENT |).of ten days, sometime in between 1967 and. 1972; 1 more re likely than not contained asbestos.
The only “evidence” Plaintiff has ever: presented i in n support of his claim is he believed that,
the materials disturbed. by MCCLURE contained asbestos. However, plaintiff ‘was.an
insulator, not a plasterer. or. ‘fireproofing installer and he admitted ‘that he personally never
installed fireproofing, Rather than providing clarification, his declaration muddied the waters,

| by changing the. only location that he allegedly saw MCCLURE work: from a definite

location (the. Mills Building) to some unnamed high- rise in downtown San Francisco.
: ‘This Reply will show that under’ neither 1) the state. of facts apparent ‘after discovery, :
nor 2) the factual picture including Ross" - declaration, ‘is there any triable issue of fact -

: regarding causation. :

i. ARGUMENT

- A Under the State of the Evidence Existing Before Summary Judgment,
- Plaintiff Cannot Show A Triable Issue of Fact

1. Plaintiff worked at the Mills Building
~ Plaintitt Robert Ross testified ‘that he worked for a total of ten.man-~ -days at the ‘Mills :

Building between 1967 and 1972, ona total of three different jobs. (UMF ‘No. 9).
me Plaintiff stated i in his. deposition taken on September. 28, 2012, confirming previous.
deposition testimony, intetrogatory. Tesponses and other submissions, that: his only work >
around McClure Blectric personnel was at the Mills Building i in San ‘Francisco:

“Qs T want to direct your, attention to the Mills Building i in San Francisco.
SC ArYes 02: : :
.Q: I went through your: interrogatories and your depositions, andy you 1 described :
working ten man days at the Mills Bulding during 1967 to 1972. Is that still ‘your
recollection?
A: Yes. oe 2
Q: and what were you. doing there at the Mills building?
. A Insulating Pipe and duct.

Q:. “Let's look at Exhibit 12, which are your ur Interrogatory answers ‘from June of
2012. “And [think it’s around page 55 that you talk: about the Mills Building, 55.
or 56. After looking at this document, do you recognize any. general contractors? oS
AD Swinerton & Walberg. :

Qh On how many man an days did you see McClure Etetric? :
OA Every ‘day. : : - :

=D

REPLY BRIEF IN SUPPORT.OF MCCLURE ELECTRIC, INC.'S MOTION FOR SUMMARY: JUDGMENT -Q: Okay... I’ve reviewed all the 111 pages of this Exhibit 12, and I reviewed your.
“notes in Exhibits 9 and 10. The only mention of McClure Electric that I saw.was—
at that one job at the Mills ‘Building. As you sit here, do you recall any other job,

- where you and McClure Electric were at the same job at the same time? .
: A: Not at this time.

. (Deposition ‘of. Robert Ross, September 28, 2012; attached to. Declaration of.
“Juniper Bacon. as. Exhibit {at 2349:17- 2350; 2353: :23 2354: 1; 2354: 9-11; ©
2355: 16-17; 2355:22; 2362: 20-2363;3). oa :

Plaintiff i isan insulator, ‘not a plasterer. During his career, he installed | pipe covering
onto Pipes, covering onto boilers, and from time to. time also. insulated duct work. However,
during his career, he did not install or handle spray- on, fireproofing. His only. experience :
with that material would have been asa bystander. He claimed ‘that while at the Mills”
Building, he saw. McClure electricians disturb materials. which he described as spray-on :

|| fireproofing. “This is a common allegation these days. by plaintiffs i in asbestos litigation. See,

for instance the Casey. case (Casey y. Perini Corporation, 206 Cal. App. 4th, 1222 at 1230), : :
where the identical claim was made by plaintiff. Indeed, Mr. Ross made this very same
claim against numerous ‘defendants i in this lawsuit. : : woe

Mr. Ross presumably felt safe i in making this omnibus claim, because many buildings
in San. Francisco and other places did contain spray-on fireproofing. However, the Mills .
Building did not. In McClure’: 's motion ‘for ‘summary judgment, we. demonstrated through °
photographs, and through the declaration of long time Building Engineer Cary | Hedman that
the. Mills Building did not then and never did contain spray-on fireproofing, asbestos or not.

3. Plaintiff's Opinion Regarding Fireproofing Is Jnadmissable La
Witness Opinion 2

“Plaintiffs are ‘confusing admissible lay witness opinion ‘and | ‘opinion that j is Teserved :
for the purview of experts. Alay witness may only offer. an opinion that i is “rationally ‘based
on the perception of the witness.” ” (Evid. Code §800(a). ) If a i fact sought to be proved i is one. :
within the general knowledge of laypeople, expat testimony i is not required, but if. otherwise,
the fact ¢ can be proved only. byt the opinions of expert. (Cramer: v. Vargas (1969) 275 Cal
App 2d 976, 982. ) : : : : SE

The: eases that Plaintiffs cite. in | support of fang the declaration admissible are ° |

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“*coREPLY BRIEF IN SUPPORT OF MCCLURE ELECTRIC, INC.'S MOTION FOR SUMMARY. JUDGMENT :lth

easily distinguishable from ‘the instant matter. The Osborn! and Farnam? cases es contemplate
the. perception of the witnesses. with ‘respect to obvious sensory cbservations (such as.
drunkenness, anger, ora defiant demeanor). :
in this case, any opinion Plaintiff may attempt to offer regarding the asbestos content
of any fireproofing material is inadmissible as an incompetent lay. opinion, Plaintiff admitted
that he_ personally -never installed fireproofing; to. ‘the contrary, plaintiff was a. career
insulator. The ability to divine the mineral content or composition of. debris that i is disturbed
when a stud is shot into.a cement ceiling by. a neighboring contractor is simply beyond any ~
layperson’s ability. "The composition of fireproofing and construction debris is not an

Hl obvious sensory observation, thus, it is not an. admissible lay witness ‘opinion, ° .

“4. Plaintiff Admits ‘There is No Spray-On Fireproofing at Mill Building >
In opposition to the motion, plaintiff does not submit an expert declaration, does not.

submit a co-worker. declaration, indeed doesnot name anyone as a witness against °.
MCCLURE except himself and his wife, who. had no ‘evidence at all. . Importantly, i in his.
declaration “Opposing the motion, he proffers not, one. ounce of evidence ‘that the Mills <
Building ever contained spray-on. or asbestos containing fireproofing other than his bald
comments previously stated at deposition. In fact, he.runs.away from the fact saying maybe
it was another building, essentially admitting that he has no evidence from the Mills Building :
to rebut MCCLURE’s statements about the ceilings i in that ‘building. (D'Amico v. Board of
Medical Examiners (1974) 11 C.3rd 1, 21; Niederer v. Ferreira (1987) 189 Cal. App.3d 1485,
1498; Scalf v. Dd. B. 3 Leg Homes, Inc. (2005). 128 8 Cal-App Ath 1510, 1521).

HTL

2 in Osborn, the court found that a lay witness may express an opinion that a person wes "drunk," or that
people engaged in a discussion were “angry,”: or that someone appeared to be ' “trying to break up a figh
(Osborn v. ‘Mission Ready Mix (1990) 224 Cal.App.3d.104, 113). oan My
2 ‘In Farnam, the court held that a correctional officer can offer the opinion that defendant stood "in a posture -
like he was going to start fighting".and that personal observation that defendant was being "very defiant” ‘is
sufficiently within common experience. (People v. Farnam (2002) 28 Cal.4th 107, 153). The assertion that the.

: opinion was based on knowledge the witness had acquired through his career refers to the experience of a. -

Fee ee ee eee are OF Saarty peicece 2 Brion Sota! (id) bem she © make
Ses obeervatcn tht defendant as being very defen: “an obvious sensory ob st “

_ cREPLY BRIEF IN SUPPORT OF MCCLURE ELECTRIC, INC'S MOTION FOR SUMMARY JUDGMENT26

222.

B. i Plaintiffs Declaration i is Allowed, Plaintiff r Stil Cannot Show s a Triable
Assue of Fact

‘1. Ross’ s ation Admits the Lack of Fire sroof at tthe Mills Building
‘In plaintiff’ opposition to McClure’ 's motion for. summary - judgment, plaintiffs did. :

{| not dispute the fact that the Mills Building does not contain asbestos-containing spray-on.

fireproofing, so. this fact is undisputed. Rather, plaintiff now belatedly tries to claim in a
declaration. that he may have seen MoClure employees somewhere. else, cat some other .
unidentified high-rise building i in downtown San Francisco. Even taking this at face value, if
Ross now claims to be, unsure of the Place where he ‘saw this defendant, how can he ‘be .
certain of. anything that he might have previously. stated during discovery? Did he really see.
McClure electricians anywhere? «If so, when? If so, what might they ] have been doing? Mr. :
Ross’ s self- serving declaration makes a mockery of the entire discovery system.

Plaintiff's Declaration Invites Conjecture into Every Fact eke:

“Discovered
- Plaintiff attempts to. muddy the waters, but the fact remains that MCCLURE did not, a
and could not ‘have, disturbed sprayed asbestos-containing fireproofing at the Mills Building,

because there was none present anywhere at the Mills Building. Further, if the court is .

2 inclined to admit Plaintiff's declaration, Plaintiffs’ claims become, even more vague, i.¢., that

at some unidentified, high-rise. in San ‘Francisco, MCCLURE disturbed ‘fireproofing in.
Plaintiffs presence, however, Plaintiff does not know the ‘brand, manufacturer, or supplier of

: the fireproofing, nor. when it was installed. .

. Plaintiff bears the burden of proof as to cach fact essential to his claim for relief
against MCCLURE. - (See. Evid. Code § 500.) To, meet this burden i in this case, he must

prove ‘that MCCLURE’ 's actions exposed him to asbestos by” a preponderance. of the 4 :
evidence, (See Evid. Code § 115; McGonnell y. Kaiser Gypsum (2002) 98 Cal-App. 4th
: 1098, 1103. ) To demonstrate a s triable i issue of fact as to ‘matters which he: ‘must prove by: a

preponderance of. ‘the evidence at trial, the plaintiff ‘must present evidence showing the matter :

to be “more likely than not.” (See Aguilar v, Atlantic Richfield Co. (2001). 25 Cal. 4th 826, “

857) Any inferences raised by the plaintiff must also satisfy the “more likely than not” "
evidentiary standard. (Leslie. €& ve Perry. & ‘Assocs. (1996) 43 Cal, App. ath 422, 487)

st Evidence which only. shows that the fact to be proved, or the inference raised, is as a key as
28 Le

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y TRERLY BRIEFIN SUPPORT OF MCCLURE ELECTRIC, INC'S MOTION FOR SUMMARY TODGRMENT oe| freproofing Plaintifs Presence over the ¢ course of ten days, either at the Mills Building, ore.

not is insuficient to meet this burden. oui y. . Atlantic Ricbela C Co., supra, 225 Cal. 4th at.
857.) - Se oe
: “An asbestos plaintt bears the burden of. proving that he was s “exposed to eicuoee
[asbestos] fibers from a product produced, distributed or installed bya particular defendant.”
(Rutherford v. Owens- Alinois, Inc. (1997) 16 Cal. a 953, 975; McGonnell v. Kaiser Gypsum
(2002) 98 Cal. App. 4" 1098, 1103.) If there i is no ‘evidence of exposure, there i is no. causation. ode
(McGonnell, Id; Dumin v. Owens- -Corning Fiberglas Corp. (1994) 28 Cal.App- ae 650, $55.) 8
If the plaintiff i is unable to. satisfy his burden of proving that he was “exposed to defendant’s .
asbestos-containing product, summary judgment should be granted for the defendant. :
(McGonnell, supra, at 1105-1106.) : : . : mo
In McGonnell, ‘the court upheld summary y judgment i in favor of defendant ‘because
plaintiffs were unable to present evidence of causation, without speculation, that the decedent _ 2
might hhave been exposed to the manufacturers” products that might have contained asbestos, .
The MeGonnell ‘court held. that a mere possibility. of exposure is ‘not enough to establish -
causation ‘when the evidence. creates only a “dwindling stream of. probabilities. that narrows .
into conjecture.” Ud. ‘at 1105 quoting Lineweaver. v, Plant Insulation Co. (1995) 31
Cal. App. 4th 1409, 1415- -1416.) ln Dunin,, the court held a "nonsuit or directed verdict i is
appropriate where plaintiffs proof. raises nothing more. than. speculation, suspicion or.

- conjecture.” “(Dumin, supra, at 654.) Dumin- concluded that it would require an

impermissible "stream of. conjecture and ‘surmise" to: -conclude that’ a defendant whose

: insulation products. were at a shipyard at the general time when a ship that the Plaintiff served
on was also at the shipyard for repairs. (id. at 657, yo:

Merely observing MCCLURE employees. perform work, without being: ‘able. to
identify the brand, ‘manufacturer, or date of ‘installation, of. any alleged ‘Spray-on fireproofing :

: that MCCLURE allegedly handled is not ‘enough to. establish -exposure.. Rather, this is

precisely what the court in Dumin described as an impermissible stream of conjecture and -

: surmise. @umin, supra, ‘at 657.) Plaintiffs must show: that materials MCCLURE handled in ©

plaintiff's presence were asbestos-containing, and they must. show. where and when the
alleged exposure. took place. Plaintifis claim that MCCLURE handled asbestos-containing :

TERY BRIEF IN SUPPORT.OF. MOCLLRE ELECTRIC, INC.’S MOTION FOR SUMMARY JUDGMENTats some > unidentified high-rise in 1 San Francisco, between 1967 and.1972. However, Plaintiffs
have provided no. admissible evidence to support this contention. MCCLURE has thus
successfully shifted the burden of production to Plaintiffs, and Plaintiffs have not produced
any evidence of: asbestos exposure attributable to MCCLURE. :

3. MCCLURE Did Raise the issue of Substantial Factor i in in Moving Papers
Plaintiffs erroneously claim that MCCLURE did not raise the i issue of substantial

factor in MCCLURE's moving papers, so plaintiffs. did not address this issue in their
opposition. Yet, MCCLURE addressed this very issue in Section C. of the: moving papers. 4
Plaintiffs must prove that exposure to asbestos due to products handled by. MCCLURE were.
a substantial factor in ‘causing Mr. Ross's colon cancer. Liberally construing plaintiffs’
evidence, even if we ‘accept his declaration as admissible, which MCCLURE vigorously :
opposes, the most ‘that can be concluded i is that asbestos may have been found ‘in some
buildings 4 that plaintiff worked in in downtown San Francisco. Assuming, arguendo, that
plaintiff's recollection is accurate that he worked around MCCLURE employees, the most
that can be alleged is that ‘MCCLURE employees disturbed fireproofing in: plaints. :

: presence over the course of ten days, split between. three different projects, spanning the

years of 1967 to. 1972. Contrast this with Plaintiff's career as an insulator, where he worked. :
with or “around asbestos-containing insulating materials on a daily basis. ‘Such evidence is.»
simply not “of sufficient weight to support a reasonable inference of causation.” (Whitmire v.-
Ingersoll. Rand Company {2010) 184 Cal. app. Ath 1078, 1093. oo :

c. Consideration of Ross” Declaration

1. Case Law Regarding Inconsistent Deciarations:
‘As. outlined below, plaintiff's declaration. is not admissible. However, plaintiff's

declaration only muddies his claims and. renders his assertions even less credible {now with

the: declaration, plaintiff cannot say when or. where he saw. MCCLURE). “As such, ~

MCCLURE pauses | for a moment before wading i in to the matter of admissibility, as having. :
the court consider the declaration actually strengthens MCCLURE’ s arguments with respect

‘Tito the speculative nature of plaintifis’ claims. Now plaintiff cannot even identify. a Jocation
: where he allegedly worked around MCCLURE, other ‘than at. "a high-rise building in:

downtown, ‘San Francisco" (the " mere possibility of exposure is not enough to establish :

~ REPLY BRIEF IN SUPPORT ‘OF MCCLURE ELECTRIC, INC.'S MOTION FOR: oR SUMMARY JUDGMENT: causation when the ‘evidence creates only a “dwindling stream of probabilities that narrows:

into conjecture, MeGonnell vy. Kaiser Gypsum (2002) 98 Cal. App. 4h 1098, 1105. ) :
oe Here, the very. case law that plaintiffs cite. for. the. admissibility. of Plaintife's os
declaration supports the opposite conclusion.” Beginning with D'Amico v. Board of. Medical. :

: Examiners (1974) 11. 3rd. 1, there have-been a long series. of cases which have discounted

declarations of plaintifis which contradicted evidence produced ‘during the normal course of :
discovery. In Whitmire, the court: considered ‘a situation virtually” identical to. this: ins :
response. to written ‘discovery, plaintiff ‘identified one PG&E location: ‘where. he. saw

: defendant. Then in a declaration i in support of plaintiff's motion for summary judgment,

plaintiff submitted a declaration identifying a different PG&E location. “Mhitmire, supra, at -
1082.) - The trial ‘court disregarded plaintiff's declaration on the basis that it contradicted S
plaintiff's previous deposition testimony and interrogatory responses, and thus did not create -
a triable issue of fact. Ud. at. 1085.) Further, the court in Whitmire ‘also. addressed and
distinguished both the ‘Scalf (Whitmire, ‘supra, at 1089) and Niederer* cases (Whitmire,

: supra, at 1088), which are both factually distinguishable from the instant matter and do x not

support plaintiffs! argument that plaintiffs declaration i is admissible.
“Tn Whitmire, the court states that “It is well established that « ‘a a party c. cannot create. an:
issue -of fact by. a declaration. which contradicts his prior. discovery Tesponses, . 2 dn

: determining whether any triable i issue of material fact exists, ‘the trial court may give ‘great

weight? ‘to: admissions “made in discovery and ‘disregard contradictory and. self serving :
affidavits of the party”. "Whitmire, supra, at 1087.) Further, i in Whitmire, the court reiterates
that "Where a declaration submitted i in opposition toa motion for summary judgment clearly

: contradicts: ‘the: declarant's earlier deposi ion testimony or discovery responses, ‘the trial.
: court may fairly disregard the declaration. and ‘conclude there i is no substantial evidence of .
~{] the existence ofa. triable i issue cof fact" (Whitmire, supra, at 1087, citing D'Amico, supra, a at

21)

28 Scalf, where a ‘gross-complainant wished to. rely on ‘plaintiffs testimony in the face of ample contradictory :
evidence, the court held that plaintiff's deposition testimony did not carry cross-complainant’s, burden. (Seals: Woe
D. B. Log Homes, Inc. (2005).128 Cal.App.4th 1510, 1523, and 1524-1525). :

|| 4:In Niederer, ‘where plainiff did not understand a legal term at her deposition, her declaration allowei her to S 2

clarify and she provided a reasonable opination for. the source of her contusion. Wieder» ¥. » Rerretra cage:
189 ‘Cal-App3d 1485, 1502 1503.) SEES e : :

s

"REPLY. BRIEF IN SUPPORT OF MCCLURE ELECTING, INC'S MOTION FOR SUMMARY JUDGMENT, :: : 2 Plaintiff Cannot Link McClure to Ashes os at Any Jobsite
“When, a defendant's “discovery. is. sufficiently comprehensive, and a Plaintiff's

| responses 80. devoid of facts, this will ead to the inference that the plaintiff could ‘not prove

causation ‘upon. a stringent review of the direct, circumstantial and inferential evidence. :
contained in: their interrogatory answers. ‘Casey vy, Perini Corporation 012). 206:
Cal. Appt 4th 1222, 1231 1 (Gting Andrews v. v. Foster Wheeler LLC (2006)138 C Cal. APP 4th 6 at :
107). : : : Ae :

Plaintiff's discussion of this history of fireproofing does < nothing to support a
conclusion that MCCLURE disturbed any asbestos materials i in plaintiff's presence. Plaintiff -
has. absolutely no knowledge regarding | the brand or supplier of any fireproofing allegedly. .

handled by MCCLURE i in his Presence. “Additionally, Plaintiff's Tesponses provide little if foo

any substantive information, much like plaintiff's responses provided i in Casey ¥. Perini. In
that: case, the Court acknowledged | that ‘plaintiff's answers assumed, “without evidentiary 5
support, that the dust and debris allegedly d disturbed by Perini workers contained asbestos. me
(Casey, supra, at 1230) : : : : :

In Casey, the facts are very, ; similar to the instant case. ‘Indeed, the plaintiff in that oe

case submitted a declaration. ‘which said that “he ‘saw. “defendant's personnel disturbing : :
materials sprayed-on t the ceilings: of the Civic Auditorium, the ‘Alcoa Building and the Hyatt
Regency Hotel, all ‘in San Francisco.» ‘However, in previous deposition Tesponses, che had

: been less ‘Clear. about the facts. In Casey, the court stated:

At the v very: east, the plaintiff imust provide ‘ ‘circumstantial
‘evidence: sufficient to support a reasonable inference’ . -. that the”
~“‘defendant’s products or activities ‘were re present at plaints s work
site [multiple citations omitted].

(Casey, supra, at 1237.) ae
: “Here, Plaintifis claim that MCCLURE handled. asbestos containing fireproofing in ye
Plaintif presence. over: ‘the ‘course. of ten days, either. at the Mills Building, or: at some: :

unidentified high-rise i in San Francisoo, at some time ‘between 1967 and. 1972. "However, ale

Plaintiff cannot identity the br | manufacturer, or date. of. installation of any. spray-on’ :
fireproofing that MCCLURE allegedly disturbed in his - “presence. ‘Merely, “observing,
MCCLURE. oe =o work, without. being: able. to Menity the: brand, :

oy. :

REPLY. BRIEF IN SUPPORT OF MCCLURE ELECTRIC, INC'S MOTION FOR Suman JUDGMENT :manufacturer, or date of installation of any alleged spray-on fireproofing, the location or year
of this alleged, exposure, is not enough to establish exposure. |: There is ‘no competent
evidence that plaintiff was semually exposed to any asbestos as a result of activities of
MCCLURE. Sas : :
it, CONCLUSION .

- Plaintiffs have not and cannot prove ‘that exposure to asbestos due to products
handled by MCCLURE ELECTRIC was a substantial factor in causing Mr. Ross's colon
cancer. Regarding MCCLURE's alleged work in his presence, Plaintiff 1) does not know the
brand or manufacturer of any disturbed material; 2) he does not know.when that material
might have been installed; and 3) has never installed any fireproofing material himself. -
Plaintiffs have failed to produce any admissible evidence during the .discovery process © -
sufficient to link MCCLURE to any of plaintiff Robert Ross's. alleged asbestos exposures. /
Plaintiffs have thus failed to raise an issue of material fact regarding causation in this case,
entitling MCCLURE to summary judgment with prejudice as a matter of law. Therefore, |
MCCLURE. respectfully requests that the Court grant its Motion for SUMMARY :
JUDGMENT WITH PREJUDICE. Alternatively, MCCLURE requests that this court grant
summary adjudication on each and ‘every one of the i issues. alleged against MCCLURE in
plaintiffs’ Complaint.

Dated: May 22013 = , SINUNU BRUNILLP. -

10

REPLY BRIEF IN SUPPORT OF MCCLURE ELECTRIC, INC.'S MOTION FOR SUMMARY JUDGMENT.