On December 17, 2010 a Motion-Secondary 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.
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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., S.B. #154436 ANNE T. ACUNA, ESQ., S.B. #245369 ELECTRONICALLY BRAYTON#PURCELL LLP Attorneys at Law FILED 222 Rush Landing Road P.O. Box 6169 Superior Court of California, County of San Francisco Novato, California 94948-6169 APR 25 2013 (415) 898-1555 Clerk of the Court Tentative Ruling Contest Email: contestasbestosTR@braytonlaw.com BY: ALISON AGBAY Deputy Clerk Attomeys for Plaintiffs SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO ASBESTOS No. CGC-10-275731 ROBERT ROSS and JEAN ROSS, Plaintiffs, PLAINTIFFS’ SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT MCCLURE ELECTRIC, INC.’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 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: 503, Hon. Teri L. Jackson Trial Date: June 10, 2013 Action Filed: December 17, 2010 Pursuant to California Code of Civil Procedure § 437¢(b), plaintiffs submit the following Separate Statement of Disputed Material Facts in Opposition to Defendant MCCLURE ELECTRIC, INC.’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication. PLAINTIFFS' DISPUTED MATERIAL FACTS SUPPORTING EVIDENCE 1. Plaintiff ROBERT ROSS was a career 1. Declaration of Robert Ross, attached as insulator, Throughout his career as an Exhibit B to the Declaration of Anne T, insulator from 1959 to the early 1990s, Acufia, #2. Mr. ROSS worked at hundreds of job locations and sites. Kainjuredi si 98 MOCLUR wl 1 ATA PLAL STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT MCCLURE ELECTRIC, INTEEFS' ARATI INCOS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONCo em YW KD hw BR YY 10 2. As he testified in his deposition, Mr. ROSS worked alongside employees of MCCLURE ELECTRIC, INC. at the remodel of a high-rise building in downtown San Francisco, California between 1967 and 1972. At this site, asa journeyman insulator, Mr. ROSS erformed insulation work on. air conditioning and heating ducts. He did this work over three different jobs within that time period, for a total of approximately 10 days. 3, Every day that Mr. ROSS was at that building, he saw employees of MCCLURE working around him. He was able to identify them as employees of MCCLURE based on their company’s name on their ard hats and other things on the job, like tool boxes. Mr. ROSS saw MCCLURE employees hanging pipe on Unistruts to connect the lights or fixtures. To hang pipe. MCCLURE employees hung Unistruts with clamps from the ceiling with rebar. The ceilings were covered with a spray-on fireproofing material that MCCLURE employees would scrape off and shoot their studs through. On multiple occasions, Mr, ROSS was within 5 to 25 feet from this WOrk. 4. Ashe testified in his deposition, the spray-on fireproofing material that he saw MCCLURE employees scrape and disturb was an old, gray, finer material with fibers sticking out. It was dry and dusty when MCCLURE scraped or shot through that fireproofing material. As he explained in his deposition, based on his knowledge, experience and training, Mr. ROSS knows that the fireproofing material MCCLURE disturbed in his presence contained asbestos because he is able to distinguish by color, texture and smell the asbestos-containing fireproofing material from the non-asbestos variety. 5. Asa carcer insulator working with and around asbestos-containing materials on construction sites, Mr. ROSS has come to learn and is able to differentiate between the old, asbestos-containing fireproofing, and new, non-asbestos containing fireproofing. The older type of fireproofing that contained asbestos had a finer consistency Kainjured b93-4¥iplies MCCLUR wd 2. Deposition of Robert Ross, attached as Exhibit A to the Acufia Decl. at 2349:19- 2350:11, 2352:2-4. Ross Decl., Exhibit B to the Acuiia Decl., at 3. Ross Deposition, Exhibit A to the Acufia Decl., at 2355:8-2357:17, 2358:8-14, 2358:25-2359:4. Ross Decl., Exhibit B to the Acufia Decl., at q4, 4. Ross Deposition, Exhibit A to the Acufia Decl., at 2359:15-17, 2360:24-2361:1, 2360:21-2362:3, Ross Decl., Exhibit B to the Acufa Decl., at qs. 5. Ross Decl., Exhibit B to the Acufia Decl., at § 6. ATA PLAINTIFFS' SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT MCCLURE ELECTRIC, INC."S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONCo em YW KD hw BR YY 10 than the new fireproofing. Additionally, the older asbestos-containing fireproofing had fibers that stuck out of it when viewed up close, whereas the asbestos-free fireproofing did not. Mr. ROSS did not see this later type of fireproofing on jobsites until approximately the mid-1970s. Mr. ROSS learned that the old, finer, gray material with fibers sticking out described above contained asbestas because when he was at a job in the late 1970s in San Francisco wherein that type of fireproofing was used throughout, it later required proper asbestos abatement removal, which he had later in his career become trained on. At that job, Mr. ROSS saw the old type of fireproofing being abated and the new ‘ype of fireproofing being applied. On that job, Mr ROSS leamed how to differentiate between asbestos-fireproofing versus the non-asbestos type. That knowledge was confirmed on various different settings throughout his career, especially in the 1980s when controls began to be instituted to protect workers from exposure to asbestos-containing materials. 6. Mr. ROSS recently reviewed the declaration of Cary Hedman, who is an engineer at the Mills Building on 220 Montgomery Street, San Francisco, California. If the assertions he makes that there is not and never has been any spray-on fireproofing in the Mills building is true then it must be a different building in downtown San Francisco that Mr. ROSS saw MCCLURE employees doing the work he described above. Mr. ROSS’s review of Mr. Hedman’s declaration does not cause him to change the testimony that he gave in his deposition about the work that he saw MCCLURE employees doing around him at a high-rise building in downtown San Francisco between 1967 and 1972. Mr. ROSS distinctly remembers that job and how that building had that old, gray, finer material with fibers sticking out, spray-on asbestos fireproofing that MCCLURE and the other trades were scraping and shooting their hangers into. While it is possible that Mr. ROSS may have gotten the name of the building wrong at his deposition, given that he worked in hundreds of different jobsites, many of which were high-rise buildings in Kainjured b93-4¥iplies MCCLUR wd 3 6. Ross Decl., Exhibit B to the Acufia Decl., at 7. ATA PLAINTIFFS' SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT MCCLURE ELECTRIC, INC."S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONCo em YW KD hw BR YY 10 downtown San Francisco substantially similar to the Mills Building, Mr. ROSS remains certain that he saw MCCLURE employees disturb asbestos-containing fireproofing around him on between 1967 and 1972. 7. MCCLURE employees did not take any 7. Ross Decl., Exhibit B to the Acufia measures to avoid or reduce the creation of Decl., at | 8. dust from their work. They did not physically isolate the areas where they disturbed asbestos containing materials and created dust nor did they undertake any measures to warn or exclude workers like Mr. ROSS from being in close proximity when they created asbestos dust. Dated: 4/25/13 BRAY TON*PURCELL LLP By: /s/ Anne T. Acuna Anne T. Acufia Attorneys for Plaintiffs Anju pds MCCLUR wpe 4 ATA PLAINTIFFS' SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT MCCLURE ELECTRIC, INC."S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION