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

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P OBOX 6169
NOVATO, CALIFORNIA 94948-6169
(415) 898-1555

ATTORNEYS AT LAW
- MARUSH LANDING ROAD

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BRAYTON@PURCELL LLP

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ALAN R, BRAYTON, ESQ., $.B, #73685
DAVID R. DONADIG, ESO., 8.B. #15443
OREN P. NOAH, ESQ., $.B. #136310 ELECTRONICALLY

ASHLEY J. BENSON, ESQ., S.B. #276326 FILED
BRAYTON@PURCELL LLP Superior Court of California,

orneys at Law County of San-Francisco
POBox 610) APR 24 2013
Novato, California 94948-6169 Clerk of the Court
(415) 898-1555 BY: VANESSA WU

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

PLAINTIFFS! MEMORANDUM OF
POINTS AND AUTHORITIES IN

ROBERT ROSS and JEAN ROSS, }
OPPOSITION. TO DEFENDANT HAROLD

Plaintiffs,
VS. .
C.C. MOORE & CO. ENGINEERS;
Defendants as Reflected on Exhibit 1

attached to the Summary Complaint herein;
and DOES 1-8500.

BEASLEY PLUMBING AND HEATING,
INC.’S MOTION FOR SUMMARY
JUDGMENT OR, IN THE
ALTERNATIVE, SUMMARY
ADJUDICATION

Date: May 8, 2013

Time: 9:30 a.m.

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

Action Filed: December 17, 2010

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AND HEATING, INC."S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONCO NR WH BR WN

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TABLE OF CONTENTS

L INTRODUCTION... etree teenies 1
Tl STATEMENT OF FACTS 2.0.0.0. occ ne nee ence e nee eee 2
UL LEGAL ARGUMENT «2.2.0.6. e eee eee eee eee ee ence eee eee 5
A. THE SCOPE OF DEFENDANT'S MOTION IS LIMITED TO THE ISSUES
PRESENTED IN ITS SEPARATE STATEMENT OF UNDISPUTED
MATERIAL FACTS ... 20.2.0 0 cece eee eee ee eer ee rece ees 5
B. DEFENDANT BEASLEY OWES A DUTY TO PLAINTIFF TO EXERCISE
REASONABLE CARE IN HANDLING AND DISTURBING ASBESTOS-
CONTAINING MATERIALS .. 26.002 eee eee ee 6
c. DEFENDANT HAS FAILED TO MEET IT’S BURDEN THAT THE
SOPHISTICATED USER DEFENSE PRONOUNCED IN JOHNSON v.
AMERICAN STANDARD, INC. 43 Cal.4th 56 (2008) APPLIES TO THE CASE
AT BAR oo. cece een tenet tenet et en eee 9
D. THE UNION HAS NO EXPRESS DUTY TO PROVIDE FOR SAFETY IN
* THE WORKPLACE «2.0.0.0 occ n tee teete ee ee il
E. THE SOPHISTICATED USER DEFENSE IS NOT A COMPLETE DEFENSE
TO PLAINTIFF’S NEGLIGENCE CAUSE OF ACTION ..............- 12
F. DEFENDANT’S ALTERNATIVE REQUEST FOR SUMMARY
ADJUDICATION SHOULD BE DENIED ..... 2.6... e cece cee eee 14
CONCLUSION oo. ee ee eee 14

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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT HAROLD BEASLEY PLUMBING
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10

TABLE OF AUTHORITIES

Cases
Bigbee v. Pacific Tel. & Tel. Co, (1983) 34 Cal.3d 49 200. 7
Conn. v. National Can Corp. (1981) 124 Cal.App.3d 630, 638.......0.0. 2.0.00. c eda eee 5
Fleet v. CBS, Inc. (1996) 50 Cal.App.4th 1911, 1916 00.0... 0. ee 3
Inemational Brotherhood of Electrical Workers, AFL-CIO v. Hechler (1987) 481 U.S,.851, 0
Johnson v.American Standard, Inc, 43 Cal.4th 56 (2008) .. 2.0.00... e eee eee 9-13
Juge vy. County of Sacramento (1993) 12 Cal _App.4th 59, 66 200.0... 6 cece 5
ir ited Airli (2009) 178 Cal.App.4th 243, 253 ...0..0000.0.022004 eee 6
North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 31 ...... 6
Peter W. v. San Francisco Unified School District (1976) 60 Cal.App.3d 814, 131 6
Rowland v. Christian, supra, 69 C.2d 108 2.02.0... eee ee eee eet eee 7
San Diego Watercrafts. Inc. v. Wells Fargo Bank, N.A, (2002) 102 Cal. App.4th 308, 316... 5
Scott v. Chevron U.S.A. (1992) 5 Cal.App.4th 510, 515 60.0... eee cee eee eee ee eee 6-7
Steelworkers v, Rawson (1990) 495 U.S. 362, 372-373 2.0.02. ec cee eee 11
Warner v, Santa Catalina Island Co. (1955) 44 C. 2d 310,317 ©... eee eee 8
Vaca v, Sipes (1967) 386 U.S. 171, 190 2.2... cece eee eee 12
Statutes
Code of Civil Procedure § 437¢ . 0.00.0... cece eee eee wo ceccueceuecseeeeuveliueas 5-6
Code of Civil Procedure § 437c(a) o...c c cence een een nner enees 5
Code of Civil Procedure § 437c(b)(1) . 5
Code of Civil Procedure § 437c(p)(2) 9
Code of Civil Procedure § 1714(a) 00.060. ccc cece cece ene ieeees 7

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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT HAROLD BEASLEY PLUMBING
AND HEATING, INC.’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONCm YN A UW BF WN

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INTRODUCTION

Defendant HAROLD BEASLEY HEATING & PLUMBING INC, (“BEASLEY”)
asserts two (2) arguments in its Motion for Summary Judgment and/or Adjudication: (1) that as
a smaller contractor, BEASLEY did not have and shouldn’t have known about the hazards of
asbestos and therefore cannot be liable to plaintiff, and (2) the affirmative defense that Mr.
ROSS was a sophisticated user and thus BEASLEY had no duty to warn Mr. ROSS of the
hazards of which he was already aware.

As to its first argument BEASLEY ignores the state of the art available at the time it
exposed Mr, ROSS to asbestos. Plaintiffs’ discovery responses include facts, references to
extensive documents, and expert testimony supporting plaintiffs’ claims that a contractor such
as BEASLEY should have know asbestos was hazardous.

Defendant’s second argument that it is shielded from liability on account of a purported
affirmative defense of sophisticated user fails on two grounds. First, defendant fails to
establish that plaintiff was a sophisticated user under applicable California law. Second, even if
plaintiff were considered to be a sophisticated user, the sophisticated user defense does not 2
amount to a complete defense and contrary to the defendant's erroneous assertion does not
absolve defendant of a duty to exercise due care.

As to its showing of plaintiff's supposed sophistication, defendant presented no
evidence regarding what plaintiff knew about hazards of asbestos at any time. Defendant has
merely suggested there are articles and there were meetings that would have informed plaintiff
of the hazards of asbestos. Defendant made no showing that plaintiff had read the articles or
attended any meetings , that there was any requirement or expectation that plaintiff had read the
articles or attend any meetings, or even that plaintiff had the opportunity to read the articles.
The defendant’s effort to stack inference upon inference fails to demonstrate that plaintiff knew

or ought to have known of asbestos hazards at the time defendant’s employees negligently

exposed him to asbestos.
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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT HAROLD BEASLEY PLUMBING
AND HEATING, INC.’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONEven had defendant successfully demonstrated plaintiff to have been sophisticated, the
sophisticated user defense, when it applies at ail, applies ONLY to the duty to warn. It does not.
relieve the defendant from its duty to exercise reasonable care to avoid injuring others by other
means. It provides no immunity for the negligence of its employees in exposing plaintiff to
asbestos.

Plaintiff produces herewith competent evidence demonstrating that a disputed issue of
material fact exists regarding what defendant ought to have known about the presence of
asbestos in the materials disturbed by its employees and the hazards posed thereby: Specifically

Richard Cohen, M.D.’s declaration articulates that there was a longstanding general

understanding of workplace dusts as posing a hazard decades before the events at issue in the *:

instant matter, creating a concurrent obligation on the part of an employer to determine if
hazardous materials are present. Dr. Cohen also articulates additional specific reasons why, by:
the mid1970's, regulations of the Environmental Protection Agency and OSHA, should have
further alerted contractors in industrial settings to the potential hazards posed by thermal
insulation materials and spray-on fireproofing. From the facts presented by Dr. Cohen’s
declaration, a reasonable finder of fact could conclude that BEASLEY ought to have known of
the presence of asbestos, or at the very least dust in general, the hazard posed thereby and
should therefore have conducted itself in a manner so as not to expose Mr. ROSS.

BEASLEY has neither shown that plaintiffs’ evidence is deficient nor proffered
sufficient evidence to establish the affirmative defense of sophisticated user as a complete
defense. Thus, BEASLEY’s arguments fail.

I.
STATEMENT OF FACTS

Robert Ross, a career insulator, suffers from colon cancer, asbestosis and asbestos-
related pleural disease. (Complaint, Ex. A.) He and his wife brought this personal injury and
joss of consortium action on December 17, 2010 against various defendants responsible for his
exposure to asbestos, including BEASLEY.

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PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT HAROLD BEASLEY PLUMBING’.
AND HEATING, INC.’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONin this Motion, BEASLEY acknowledges that the claims herein arise from Beasley's
plumbers exposing Mr. ROSS to asbestos at three sites: McKinleyville High School, St. Patrick
High School, and Fairfield Hospital. (BEASLEY’s Separate Statement No. 6.)

Defendant BEASLEY acknowledges that the evidence shows that:

’ Mr. ROSS worked in the presence of a BEASLEY plumber named “Brownie”
on a new construction project at McKinleyville High School in McKinleyville,
California between 1961 and 1965 and that Mr. ROSS observed "Brownie"
disturb existing fireproofing when "Brownie" installed new plumbing lines.
(BEASLEY’s Separate Statements Nos. 7 & 8.)

. During a roughly one month new construction project at St. Patrick High School
in Vallejo, California between 1967 and 1969, Mr. ROSS worked in the presence
of Jim Beasley and a Beasley-plumber he knew as "Browning." "Browning's"
work included fabricating’Garlock gaskets. (BEASLEY’s Separate Statements
Nos. 10 & 11.)

. In-1979, Mr. ROSS observed one or two BEASLEY plumbers remove existing
insulation and disturb existing fireproofing during a one to two week remodel
project on Fairfield Hospital's campus. (BEASLEY’s Separate Statement No.
12.)

In this Motion, BEASLEY does not contend that plaintiff cannot prove that the thermal
insulation, fireproofing and gaskets disturbed by BEASLEY employees in plaintiff’s presence
did not contain asbestos, or that he was not exposed to asbestos. (BEASLEY’s Separate
Statement of Facts.) ‘ :

With regard to BEASLEY’s contentions that it owed no duty to prevent Mr. ROSS from
breathing in the asbestos dust that its employees created, the facts are that:

. Extensive literature, dating back a century, recognized the potential hazards

posed by toxic substances leaving the work place on the clothing or person of
workers. (Declaration of Richard Cohen, M.D., M.P.H.)
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PLAINTIFFS‘ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT HAROLD BEASLEY PLUMBING
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Literature dating back as early as1898 recognized the hazards posed by asbestos
and by the late 1940s, it came to be understood that asbestos could cause cancer.
(id)

Extensive studies and literature indicate that well recognized practices were
available to reduce or eliminate the exposure to asbestos in the workplace. (Id.)
By the 1960s a company working in construction and on jobsites where
contractors and laborers were working alike should have been aware of potential
health hazards associated with exposure to certain occupational dusts generally.
In view of this, to the extent that any contractor was unaware of the composition
of dust which might be created or encountered, it ought to have sought out such
information. (Id.)

Likewise, by the 1960s a company, working in construction and on jobsites »
where contractors and laborers were working alike, should have been aware of
health hazards associated with exposure to asbestos dust. Information was
readily available prior to the 1960s concerning the health hazards of not only
exposure to certain occupational non-asbestos dusts, but also to asbestos dust
and the associated increased risk of developing an asbestos-related disease.
Information regarding the substantial health risks associated with exposure to
airborne asbestos was readily available by the 1960s, and only became more
readily available over the course of time. (Id.)

Equally available was information about measures to reduce the creation of dust
and eliminate or reduce the exposure to dust that was created. By the 1960s,
contractors, including defendant, located in California and subject to California
General Industry Safety Orders, had ready access to information regarding
methods for mitigating exposures and could have implemented them. (Id.)
Contractors such as defendant should have been educating their employees and

implementing procedures to mitigating dust in at least the 1960s. (Id.)

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PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT HAROLD BEASLEY PLUMBING
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LEGAL ARGUMENT
A. THE SCOPE OF DEFENDANT'S MOTION IS LIMITED TO THE ISSUES
PRESENTED IN ITS SEPARATE STATEMENT OF UNDISPUTED
MATERIAL FACTS

California Code of Civil Procedure § 437c imposes “on the moving party both a

pleading requirement and a substantive burden in order to prevail on a motion for summary

judgment.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 66.) “[T]he initial duty -

to define the issues presented by the complaint and to challenge them factually is on the
defendant who seeks a summary judgment.” (Conn. v. National Can Corp, (1981)

124 Cal.App.3d 630, 638.) This duty requires a defendant seeking summary judgment to set
forth in its moving papers “with specificity (1) the issues tendered by the complaint or answer
which are pertinent to the summary judgment motion and (2) each of the grounds of law upon
which the moving party is relying in asserting that the action has no merit or there is no defense
to the action.” (Juge, 12 Cal.App.4th at 67.)

Specifically, “[t]he Separate Statement of Undisputed Material Facts in support of a
motion must separately identify each cause of action, claim, issue of duty or affirmative
defense, and each supporting material fact claimed to be without dispute with respect to the
cause of action, claim, issue of duty, or affirmative defense. (Cal. Rules of Court, rule
3.3150(d), emphasis added.) “The due process aspect of the separate statement requirement is
self-evident, to inform the opposing party of the evidence to be disputed to defeat the motion.”
(San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A, (2002) 102 Cal.App.4th 308, 316.)

“Failure to comply with this requirement of a separate statement may in the court’s discretion
constitute a sufficient ground for denial of the motion.” (C.C.P. § 437c(b)(1)) “Facts stated
elsewhere [other than in the separate statement] need not be considered by the court.” (Fleet v.
CBS, Inc, (1996) 50 Cal_App.4th 1911, 1916.) Due process further requires the Court to
exclude any evidence which was not timely served in accordance with C.C.P. § 437c(a). (San
Diego Watercrafts, Inc., 102 Cal.App.4th at 316.) “Thus, when the ‘fact’ is not mentioned in
the separate statement, it is irrelevant that such fact might be buried in the mound of paperwork
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PLAINTIFFS‘ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT HAROLD BEASLEY PLUMBING
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filed with the court, because the statutory purposes are not furthered by unhighlighted facts.”
(North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 31.)

Further, defendant cannot expand the scope of its argument or offer new evidence in
response to either plaintiff's response to defendant's Separate Statement or to plaintiffs own
Separate Statement if one was necessary. There is no provision in either C.C.P. § 437c or
California Rules of Court 3.1350 authorizing or allowing a response to the opposing party’s
Separate Statement. (See Nazir v. United Airlines, Inc. (2009) 178 Cal. App.4th 243, 253.)
Therefore, any supplemental declarations, documents, or additional evidence presented by
defendant in its reply brief or at the hearing on this motion must be disregarded.

Here, defendant makes two arguments, both erroneous: (1) that defendant was so small
a contractor that they didn’t know and shouldn’t have known asbestos dust was hazardous; and
(2) even if they had known about the hazards of asbestos dust, defendant owed no duty to
plaintiff because Mr. ROSS was a sophisticated user. <

Defendant does not dispute that its employees disturbed and handled fireproofing,
gaskets, and thermal insulation. They merely, erroneously, claim that they owed Mr. ROSS no
duty to exercise reasonable care. Nor does defendant argue any failure of evidence of exposure
or medical causation.’

B. DEFENDANT BEASLEY OWES A DUTY TO PLAINTIFF TO EXERCISE

REASONABLE CARE IN HANDLING AND DISTURBING ASBESTOS-
CONTAINING MATERIALS

“According to the familiar California formula, the allegations requisite to a cause of
action for negligence are (1) facts showing a duty of care in the defendant, (2) negligence
constituting a breach of the duty, and (3) injury to the plaintiff as a proximate result.” (Peter W.
y. San Francisco Unified School District (1976) 60 Cal.App.3d 814, 131.) Defendant owed a

duty of care to plaintiff in this matter, which it breached. As a result, plaintiff suffered injury.
The foreseability of the harm, though not determinative, has become the chief factor in

duty analysis." (Scott v. Chevron U.S.A. (1992) 5 Cal.App.4th 510, 515.) Our state Supreme

} Defendant also seeks summary adjudication of plaintiff’s claims for strict liability, but plaintiff has
dismissed this cause of action.

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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT HAROLD BEASLEY PLUMBING
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Court discussed the foreseeability analysis in Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d

49. In that case, the plaintiff was inside a telephone booth located in a parking lot 15 feet away
from the curb when an intoxicated driver veered off the street and crashed into the booth,
injuring plaintiff. The plaintiff sued the entities that installed and maintained the telephone
booth, alleging that the booth was negligently located too close to the street. The defendants
moved for summary judgment, which the trial court granted. The Supreme Court reversed.
Regarding the issue of foreseeability, the court explained: "In pursuing this inquiry, it is well to
remember that 'foresceability is not to be measured by what is more probable than not, but
includes whatever is likely enough in the setting of modern life that a reasonably thoughtful
[person] wouid take account of it in guiding practical conduct.' [Citation.] One may be held
accountable for creating even "the risk of a slight possibility of injury if a reasonably prudent

[person] would not do so.” [Citations.] (Id. at pp. 57-58.) As the Scott court explained, in

analyzing duty, the court's task: 2

is not to decide whether a particular plaintiff's injury was reasonably
foreseeable in light of a particular defendant's conduct, but rather to
evaluate more generally whether the category of negligent conduct

at issue is sufficiently likely to result in the kind of harm experienced
that liability may appropriately be imposed on the negligent party."
[Citation.] Viewed in this light, the question of foreseeability in a
"duty" context is a limited one for the court, and readily contrasted
with the fact-specific foreseeability questions bearing on negligence
(breach of duty) and proximate causation posed to the jury or trier
of fact. [Citation.] (Scott, supra, at p. 516.)

California Civil Code § 1714(a), derived from the common law and unchanged in our
law since 1872, reads in part as follows: “Every one is responsible, not only for the results of
his or her wrongful acts, but also for an injury occasioned by his or her want of ordinary care or
skill in the management of his or her property or person, except so far as the latter has, willfully
or by want of ordinary care, brought the injury upon himself or herself." (Witkin, supra, § 833.)

In Rowland v. Christian, supra, 69 C.2d 108, the court reexamined negligence liability

and concluded that this general section is the foundation of California negligence law.
Rephrased, it establishes the general principle that "(a)ll persons are required to use ordinary
care to prevent others being injured as the result of their conduct." And, “in the absence of
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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT HAROLD BEASLEY PLUMBING
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statutory provision declaring an exception to the fundamental principle..., no such exception
should be made unless clearly supported by public policy.” (1d, at 112.)

"The standard of care required of the reasonable person when dealing with ... dangerous
articles is so great that a slight deviation therefrom will constitute negligence." (Warner v.
Santa Catalina island Co. (1955) 44 C. 2d 310, 317.)

Here, defendant first argues that it owed and breached no duty to plaintiff as plaintiffs
lack evidence of what BEASLEY knew or should have known concerning the presence of
asbestos in the fireproofing and thermal insulation materials it disturbed. Naturally, plaintiffs
are not in a position to demonstrate what BEASLEY actually knew more than 30 years ago, but
they are not required to do so. What plaintiffs can do, and have done, is to produce evidence
that BEASLEY ought to have known whether asbestos was present in the materials it was
disturbing and exposing plaintiff to. Dr. Cohen, in paragraphs 12-15 of his declaration,
articulates how there was a widespread understanding, dating from the 1930's and 1940's and
even earlier, that there was a general hazard posed by dusts in industrial settings and a further
recognition that “[t]he only safe way for an employer is to regard all dusts in industry as a

hazard” absent a determination otherwise. In view of this, to the extent that any contractor was

-unaware of the composition of dust which might be created or encountered, it ought to have

sought out such information.

Additionally, regardless of the kind of dust, BEASLEY should have protected its own
employees and in the process would also have protected Mr. ROSS. Dr. Cohen explains, in
paragraphs 15, 21 and 22 of his declaration, that the information regarding the hazards
associated with dust exposure was readily available to companies working in the construction
trades, including BEASLEY by at least by the mid-1930s. As a California employer,
BEASLEY was subject to the California General Industry Safety Orders and therefore should
have educated its employees about the precautions to be taken around workplace dust, by the
early 1960s at the latest.

A disputed issue of material fact has been. demonstrated as to BEASLEY’s duty of care

and its breach.

“ 8

PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT HAROLD BEASLEY PLUMBING
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Cc. DEFENDANT HAS FAILED TO MEET IT’S BURDEN THAT THE
SOPHISTICATED USER DEFENSE PRONOUNCED IN JOHNSON v.
AMERICAN STANDARD, INC. 43 Cal.4th 56 (2008) APPLIES TO THE CASE
AT BAR

When asserting an affirmative defense as defendant does here, defendant bears the
burden of producing evidence sufficient to establish all elements of the affirmative defense.
(C.C-P. § 437c(p)(2).) BEASLEY failed to produce such evidence as demonstrated below.

The sophisticated user defense was recognized by the California Supreme Court in the

case of Johnson v. Am erican Standard, Inc, (2008) 43 Cal.4th 56. (“Johnson.”) The case

involved a plaintiff who was a trained and certified heating ventilation and air conditioning

(HVAC) technician. He was injured when heat from a welding torch he was using caused “R-
22"--a refrigerant gas in the air conditioning system he was working on-- to decompose into
phosgene gas, a hazardous toxic substance. Plaintiff sued American Standard, the
manufacturer of the air conditioning system, alleging both strict liability and negligence, with
each cause of action grounded in a claim that the manufacturer failed to provide adequate
warning of the hazard posed by the heating of the R-22 gas. The Johnson court upheld the trial
court’s grant of summary judgment based on a factual determination that plaintiff had been a
sophisticated user with respect to the refrigerant gas and a legal holding that “[a]. manufacturer
is not liable to a sophisticated user of its product for failure to warn of a risk harm or danger if
the sophisticated user Anew or should have known of that risk harm or danger”. (Id., at 71,
emphasis added.) Here, defendant has produced no evidence whatsoever that Mr. ROSS had
actual knowledge of any risk associated with asbestos at any relevant time.

Jobnson of course recognized an alternate means of establishing status as a sophisticated
user-- the “should have known standard”. (id.) But defendant likewise failed to produce
evidence sufficient to demonstrate that plaintiff “should have known” that there were health
hazards associated with asbestos generally or, more particularly, that plaintiff “should have
known” that the fireproofing defendant handled and disturbed was hazardous.

The facts of Johnson provide useful illustrations of how it can be demonstrated that a

product user should have known of the hazards of a product. The evidence in Johnson revealed

PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT HAROLD BEASLEY PLUMBING
AND HEATING, INC.’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADIUDICATIONCem WOH hm BB WN

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that the plaintiff was required to have been certified by the EPA and that the EPA required
certified HVAC technicians to understand the decomposition products of refrigerants under
high temperatures. In addition the court noted that the study guide that comprised-part of an
HVAC technician’s training contained specific information that refrigerant in contact with high
heat can form dangerous substances. Moreover, there was evidence that the Material Safety
Data Sheets (“MSDS”) for R-22 gas—which plaintiff acknowledged having received.and
read-contained explicit warnings that heating the material could lead to the release of phosgene
gas. Finally, the court noted expert testimony, apparently undisputed, that there was wide
knowledge among HVAC technicians that when R-22 is heated it can release phosgene gas.

Defendant here failed to make an evidentiary showing commensurate with any of the
foregoing examples. There was no showing that plaintiff was required by any agency or entity
to have any understanding of the hazards associated with the materials with which he worked.
Defendant, in its examination of plaintiff regarding his training declined to explore what, if
anything, he was taught about asbestos hazards. Although defendant argues the publication,
The Asbestos Worker, contained information about asbestos, it ignores the fact that plaintiff
testified he did not read any of the issues . There was no evidence that MSDS sheets were ever
provided to plaintiff at any relevant time nor any evidence that plaintiff ever received any
information by any other means advising him of health hazards associated with asbestos.

Nor did defendant offer other evidence, as was presented in Johnson, that hazards
concerning the product in question were well known among members of plaintiff's class. In
Johnson, in addition to evidence regarding training, testing, certification and distribution of
warnings via Material Safety Data Sheets, there was express testimony via declaration of a
defense expert that “it was ‘widely known among HVAC technicians’ that when R-22 is heated
it can decompose into toxic substances including phosgene gas.” (1d., at 74.) Here however, .
defendant, rather than making a showing that there was widespread knowledge of hazards on
the part of other workers like plaintiff, defendant instead presented evidence purporting to show
knowledge on the part of third parties, the union with which plaintiff was affiliated and one
higher up individual within the union.

PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT HAROLD BEASLEY PLUMBING
AND HEATING, INC."S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONeo Oe YN DH HW RB BN

Even accepting defendant’s premise that plaintiff’s union had knowledge conceming
asbestos hazards as of at least 1957, defendant failed to demonstrate that the union’s knowledge
was conveyed to its rank-and-file in an effective way. Defendant did not demonstrate that the
union undertook to train, test, or certify its members regarding asbestos hazards. Defendant did
not show that plaintiffs union promulgated work rules addressing asbestos hazards or
negotiated contracts with plaintiff's employers mandating enforcement of safe asbestos
handling practices. The only evidence offered by defendant as to why plaintiff should be
deemed “sophisticated” is that the union produced a few issues of its monthly magazine--a
magazine plaintiff stated in swom testimony that he did not read-- and meetings which
defendant does not even attempt to prove plaintiff attended, that spoke to the issue of health
tisks associated with asbestos insulation. Defendant failed to demonstrate how plaintiff, or
others situated similarly to him, was to have come to learn of information in articles he never
had an opportunity to read and meetings he never attended. . :

D. ..THE UNION HAS NO EXPRESS DUTY TO PROVIDE FOR SAFETY IN
THE WORKPLACE

in Johnson, the Supreme Court emphasized that pursuant to various California Code

Regulations that employers are required to train and educate their employees about the.
chemicals and dangers to which they may be exposed on the job. (Id, at 62.)

The dangers and risks associated with R--22 are noted on Material
Safety Data Sheets (MSDS's). (Cal.Code Regs., tit. 8. § 5194, subd.
(g)(1), (2).) The purpose of MSD8's is to inform those who may
come into contact with potentially hazardous chemicals about their
dangers. (See Cal.Code Regs.. tit, 8, § 5194, subd. (g).) Employers
are required to use the MSDS to train and educate their employees
about the chemicals and dangers to which they may be exposed on
the job. (See Cal.Code Regs., tit, 8, § 519, subd. (h).) Among other
things, employers are required to tell employees where they can find
the MSDS's, how to read them, how to detect the presence of
dangerous materials, and how to protect against possible heaith
hazards from those materials. (Cal.Code Regs.. tit. 8. § 5194, subd.
(H)2)(0), (D), (E), ).)

But a union has no such obligation or duty.
There is no express duty of care a union owes to its members under a negligence cause

of action. (Steelworkers v, Rawson (1990) 495 U.S. 362, 372-373.) While unions do have a

PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT HAROLD BEASLEY PLUMBING
AND HEATING, INC,'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONoD me NY KD A BR WN

duty of fair representation (Vaca v. Sipes (1967) 386 U.S. 171, 190), this duty does not
encompass an implied duty of care to furnish a safe workplace. .

At most, a union may acquire such a duty if it expressly assumes responsibility for it
under a contractual arrangement with an employer. Only then do claims of negligence have any

possible merit: (International Brotherhood of Electrical Workers, AFL-CIO v. Hechler (1987)

481 U.S. 851, 861.) Additionally, the employee must have relied on that duty. (Rawson,
495 U.S. at 363.) In the absence of an express assumption and reliance, a negligence claim will
not lie.

In International Brotherhood, a union. member claimed her union breached a duty of care
to provide her with a safe workplace. The Supreme Court stated that the key inquiry for
ascertaining if a cause of action existed was to look at the contract and determine what duties
were taken on by each of the parties, and the scope of these duties. (International Brotherhood,
481 U.S. 851 at 862.)

In as much as defendant has failed to show that plaintiff knew the hazards of asbestos,
or that he. ought to have known because he received training in the subject, defendant’s
argument appears to be that plaintiff ought to have known because the union ought to have
trained him. Defendant offers no evidence that the union by its charter or contract with plaintiff
or by any other means was required to assure that plaintiff became sophisticated about the
hazards of asbestos. Plaintiff cannot be charged with constructive knowledge based merely
upon a judgment regarding what his union, in a perfect world, ought to have done. :

E. THE SOPHISTICATED USER DEFENSE 1S NOT A COMPLETE DEFENSE
TO PLAINTIFF’S NEGLIGENCE CAUSE OF ACTION

Even if Mr. ROSS were considered a sophisticated user, such circumstance provides no
defense other than to a cause of action based upon an alleged failure to warn. A plaintiff's
sophistication does not relieve a defendant from any duty to exercise reasonable care otherwise.

The California Supreme Court, in describing the scope of the sophisticated user defense

in Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56. (“Johnson”), could not have been

more succinct or clear: “A manufacturer is zot liable to a sophisticated user of its product for

Kcdlajuced AG3SiplbopaLEa SL Yaad 12
PLAINTIFES' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT HAROLD BEASLEY PLUMBING
AND HEATING, INC.’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONCm ny DA MW eR WN

10

failure to warn of a risk harm or danger if the sophisticated user knew or should have known of
that risk harm or danger.” (Johnson, supra, at 71, emphasis added.) While the court recognized
that the sophisticated user defense could be applied to both strict liability and negligence, the
basis for so holding was that “there is Little functional difference between the two theories in the
failure to warn context.” (Id., emphasis added.)

Not only is the scope of the sophisticated user doctrine plainly and repeatedly stated by.
the Johnson court, the court’s discussion of the policy rationale underlying the defense is only
sensible in the context of failure to warn. The Johnson court describes the defense as an
outgrowth from Restatement Second of Torts, section 388 and the obvious danger rule. (Id.,.at
-65.) Each of these doctrinal underpinnings share the identical rationale: there is no need to
warn about risks or dangers that are already known. (id., at 66.)

It does not follow that the sophisticated user defense relieves a defendant of all duty to'-
exercise reasonable care outside the context of providing a warning. Plaintiffs’ claim here is
not that Mr. ROSS was injured because defendant failed to. warn him of a hazard, but because
defendant’s employees engaged affirmatively in negligent work practices that exposed him to
asbestos: BEASLEY employees failed to isolate their work as they handled and disturbed
asbestos-containing materials either by erecting physical barriers to prevent the movement of -
dust or by excluding others from being in proximity and thus exposed plaintiff to the dust they.
negligently generated. For defendant’s argument that it is shielded by the “sophisticated user”
defense, to be effective beyond the failure to warn context, would require that the ‘affirmative :
defense be widened to provide that a “sophisticated user” is owed no duty of care in any +
circumstance and that defendant had carte blanche to abandon the exercise of reasonable care
and could conduct itself without regard to whether its activities created injurious exposures.
Neither Johnson nor any of its progeny have so defined the sophisticated user defense and such
a wholesale abandonment of the principle of duty to exercise reasonable care, and is not
remotely supported by the policies underlying the limited relief from a duty to warn-- the sole-.
immunity contemplated by the sophisticated user doctrine.

Wi

Maju DUGRASpl Dopp DE ASL Vacate wind
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT HAROLD BEASLEY PLUMBING
AND HEATING, INC,"S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONF. DEFENDANT’S ALTERNATIVE REQUEST FOR SUMMARY
ADJUDICATION SHOULD BE DENIED

1
Plaintiff has dismissed claims for negligence (products) and products liability against

defendant leaving only the premises owner/contractor liability claim.. Defendant’s argument
with respect to its negligence as a contractor fails for the same reasons argued above. . Thus,
defendant’s failure to shift the burden as to this claim necessitates a denial of the motion for
summary adjudication regarding the same.

CONCLUSION
| For all of the foregoing reasons, plaintiff respectfully requests this Court deny
| BEASLEY's Motion for Summary Judgment or the alternative Motion for Summary -
| Adjudication.
Dated: April 24, 2013 BRAYTON*#PURCELL LLP

By: /s/ Ashley J. Benson
Ashley J. Benson
Attorneys for Plaintiffs

[Te comply with Department 503's rule regarding tentative rulings, you must email

he Court notice if you wish to contest the tentative ruling at the following email address:
contestasbestostr@sftc.org. A copy of any email notification to Department 503 must also

be sent to our firm at contestasbestostr@braytonlaw.com.]

PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT HAROLD BEASLEY PLUMBING
AND HEATING, INC.’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONBRAYTON@PURCELL LLP
ATEORNEYS ATLAW
222 RUSH LANDING ROAD
POBOX 6169
NOVATO, CALIFORNIA 94948-6169
(415) 898-1555

oOo wm ID A BR WwW NY

10

PROOF OF SERVICE BY LEXIS-NEXIS E-SERVICE

Tam employed in the County of Marin, State of California. I am over the age of 18
years and am not a party to the within action. My business address is 222 Rush Landing Road,
P.O. Box 6169, Novato California, 94948-6169.

On April 24, 2013, I electronically served (E-Service), pursuant to General Order No.
158, the following documents:

PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN
OPPOSITION TO DEFENDANT HAROLD BEASLEY PLUMBING AND
HEATING, INC.’S MOTION FOR SUMMARY JUDGMENT OR, IN THE
ALTERNATIVE, SUMMARY ADJUDICATION; DECLARATION OF ASHLEY
J. BENSON IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANT
HAROLD BEASLEY PLUMBING AND HEATING, INC.’S MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY
ADJUDICATION; PLAINTIFFS’ RESPONSE TO DEFENDANT HAROLD
BEASLEY PLUMBING AND HEATING, INC.’S SEPARATE STATEMENT OF
UNDISPUTED FACTS; PLAINTIFFS' SEPARATE STATEMENT OF
DISPUTED MATERIAL FACTS IN OPPOSITION. TO DEFENDANT HAROLD
BEASLEY PLUMBING AND HEATING, INC.’S MOTION FOR SUMMARY
JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION;
PLAINTIFFS’ EVIDENTIARY OBJECTIONS TO DEFENDANT HAROLD
BEASLEY PLUMBING AND HEATING, INC.’S MOTION FOR SUMMARY
JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION;
[PROPOSED] ORDER

on the interested parties in this action by utilizing Lexis-Nexis E-service program pursuant to
General Order No. 158, to transmit a true copy thereof to the following party(ies):

SEE ATTACHED SERVICE LIST

The above document(s) were transmitted by Lexis-Nexis E-Service.
Executed on April 24, 2013, at Novato, California.
I declare under penaity of perjury under the laws of the State of California that the

foregoing is true and correct.
— gS \
~ / -

Diane TI. Davidowski

Robert Ross, et al. v. C.C. Moore & Co. Engineers. etal.
San Francisco Superior Court Case No. CGC-10-275731

PROOF OF SERVICE BY E-SERVICEBrayton-Purcell Service List

Date Created: 4/24/2013-2:01:56 PM

(DID)

Created by: LitSupport ~ ServiceList - Reporting

Matter Number:

Adams Nye Becht LLP
222 Kearny Street, Seventh Floor
San Francisco, CA 94108
445-982-8955 415- 382. 2042 (fax)
Defendants:

Pribuss Engineering, Inc. (PRIBUS)

Becherer, Kannett & Schweitzer
Water Tower
1255 Powell Street
Emeryville, CA 94608-2604
$10-658-3600 510-658-1151 (fax)
Defendants:
CSK Auto, Inc. (CSKAUT
Johnson Controls, Inc. JOHCON)

Bishop, Barry, Drath
Watergate Tower IIL
2000 Powell Street, eauite 1425
Emeryville, CA.
510-596-0888 3 io: 1396-0899 (fax)
Defendants:

Foley Blectric Co. (FOLELE).

Buty & Curtiano
555-12" Street, Suite 1280
Oakland, CA 9
510-267-3000 Sto 267-0117 (fax)
Defendants:
Critchfield Mechanical, Inc. (CRIMEC)
Harold Beasley Plumbing and Heating, Inc.
(BEASLY)
S.J. Amoroso Construction Co., Inc.
(AMOCON)

Foley & Mansfield PLLP
300 Lakeside Drive, Suite 1900
Oakland, CA 9461
510-590-9500 510-590-9595 (fax)
Defendants:
Acco Engineered Systems, Inc,
(ACCESS
D.W. Nicholson Compan oration. (DWNICH)
Fluor Corporation (FLUOR)
Lone Star Industries, Inc. {ENSTR)
mond Interior Systems-North

19349.004 ~ Robert Ross

Archer Norris
P.O. Box 8035
2033 N. Main Street, suite 800
Walnut Creek, CA 94596
925-930-6600 925-930-6620 (fax)
Defendants:
Albay Construction Con any & LBAY)

Cahill Construction Co., ‘AHILC)
Ganill Contractors, Inc. ine (CAH iL
Cupertino Electric, Inc. )

y

Bennett, Samuelsen, Reynolds & Allard
1301 Marina Village Parkway
Suite 300
Alameda, CA 94501-1084
510-444-7688 510-444-5849 (fax)
Defendants:

Slakey Brothers, inc. (SLAKEY)

Brydon. Hugo & Parker
135 Main Street, 20" Floor
San Francisco, CA 94105
415-808-0300 415-808-0333 (fax)
Defendants:
A. Teichert & Son, Inc. (ArEic
Bayer Cropscience Inc. (BAYCRO)
Domco Products Texas, L.P. MCO)
Perini Corporation (PERCOR)
Rountree Plumbing & Heating Inc.
(RNTPLU)
Swinerton Builders (SWINBU)

Cooley Manien- Jones, LLP

201 Spear Street

Suite 1800

San Francisco, CA 941
415-512-4381 415- 315. 6791 (fax)
Defendants:

Temporary Plant Cleaners, Inc. (TEMPLA)

Gordon & Rees LLP
Shari Weintraub, Esq.
ol West Broadivay, '16" Floor
San Diego, CA 1
619-696-6700 io. 696-7124 (fax)
Defendants:
Marshco Auto Parts, Inc. (MARAPI)

(RAYISN)
‘Van-Mulder Sheet Metal, Inc. (VANMSM)

Run By : Davidewski, Diane

Bassi, Edlin, Huie & Blum LLP
500 Washington Street
Suite 700
San Francisco, CA 9411
415-397-9006 415-397- ‘i339 (fax)
Defendants:
Balliet Bros. Construction Corporation
(BALBRO)
J.T. Thorpe & Son, Inc. (THORPE)
Malm Metal Products, Inc. (€MALMSM)

Berry & Berry
P.O. Box 16070
2930 Lakeshore Avenue °
Oakland, CA 94610
510-835-8330 510-835-5117 (fax)
Defendants:
Berry & Berry (B&B)

Burnham Brown
1901 Harrison Street, 14" Floor
Oakland, CA 9461
510-444-6800 510-835-6666 (fax)
Defendants:

California Drywall Co. (CALDRY)

Drinker Biddle & Reath LLP

50 Fremont Street, 20" Floor

San Francisco, CA 94105-2235

415-591-7500 415-591-7510 (fax)

Defendants: . . .
Pharmacia Corporation, which will do

business in California as Pharmacia

Pharmaceutical Corporation (PHARCA)

Gordon & Rees LLP
Embarcadero Center West
275 Battery Street, Suite 7000
San Francisco, CA 9411
415-986-5900 415-986-! 1054 (fax)
Defendants:
Goodyear Tire & Rubber Company, The
(GOODYR)Date Created:
(pip)

4/24/2013-2:01:56 PM

Brayton~-Purcell Service List

Created by: LitSuppert - ServiceList ~- Reporting

Matter Number:

Haas & Najarian, LLP
58 Maiden
Second Floor
San Francisco, CA 9
415-788-6330 41 Saat sss (fax)
Defendants:
McClure Electric, Inc. (MCCLUR)

Law Offices of Glaspy & Glaspy, Inc.

One Walnut Creek Center
100 Pringle Avenue, Suite 750
Walnut Creek, CA 94596
925-947-1300 Shs. 947-1594 (fax)
Defendants:

Fairmont Hotel Company (FAIRH)

McInerney & Dillon, P.C. :
1999 Harrison Street,’ Suite 1700
Oakland, CA 94612
510-465-7100 510-465-8556 (fax)
Defendants:

Allied Fire Protection (ALLFIR)

Seiman Breitman LLP
33 New Montgomery
6" Floor
San Francisco, CA 94105
415-979-0400 415-979-2099 (fax)
Defendants:

Rountree Plumbing & Heating Inc.
(RNTPLU)

Syalsworth, Franklin, Bevins & McCall,

601 Mont; Strset, ° Floor
San Francisco, CA 9411
415-781-7072 415-391- 15288 (fax)
Defendants:
D. Zelinsky & Sons, Inc. (ZELINS)
Duro Dyne Corporation (DURODN)

19349.004 - Robert Ross

Hake Law, A Professional Corporation
655 Montgomery Street
Suite 1000
San Francisco, CA 9411
415-926-5800 415-926-' 's801 (fax}
Defendants:
Advance Mechanical Contractors, Inc.
(ADVMEC)
Anderson, Rowe & Buckley. Inc, (AR&B)
Bell Products Inc,
Bragg Investment Company, "ine.
(BRAGG)
Collins & Electrical Company, Inc.

(CO) TO),
Emil J. Weber Electric Co. (EMILJW)

Low, Ball & Lynch
505 Montgomery Street, 7" Floor
San Francisco, CA 94111-2584
415-981-6630 415-399-1506 (fax)
Defendants:
Giampolini & Co. (GIAMPO)
Pacific Mechanical Corporation
{PACMCR)

Perkins Coie LLP
Four Embarcadero Gepter, Suite 2400
San Francisco, CA 94111
415-344-7000 415-344-7050 (fax)
Defendants:

General Mitls, Inc. (GMILLS)

Sinunu Bruni LLP
333 Pine Street, Suite 400
San Francisco, CA 94104
415-362-9700 415-362-9707 (fax)
Defendants:

McChure Electric, Inc. (MCCLUR)

Run By : Davidowski, Diane

Imai, Tadlock, Keeney & Cordery, LLP
160 Bush Street, Suite 1300.

San Francisco, CA 94104

415-675-7000 415-675-7008 (fax)

Defendants:
Clausen-Patten, Inc. (CesNed)
Commair Mechanical Services

oe mycB ck C (CBECK)
len eck Compal
Webcor Builders, ine. DW EBCaiS

McDowall Cotter, A.P.C.
2070 Pioneer Court
San Mateo, CA 94403
650-572-7933 650-572-0834 (fax)
Defendants:

Beta Mechanical Contractors, Limited
(BETAMC)

Prindle, Amaro, Goetz, Hillyard, Barnes
& Reinholtz LLP
One California Street, Suite 1910
Francisco, CA 94111

415-788-8354 415-788-3625 (fax)
Defendants:

JW, McClenahan Company, Inc.
Ret Tse lk Co. Ei ille, b

lectric Co. Emeryville, Inc.

{REDEL! Le)

Sweeney, Mason, Wilson & Bosomworth
A Professional Law Corporation
983 University Ave., Suite 104C
Los Gatos, CA 95032-7637
408-356-3000 408-354-8839 (fax)
Defendants:

eae ae) Electric Co. Emeryville, Inc.