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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NOVATO, CALIFORNIA 94948-6169 oem NY KD he BY 10 ALAN R. BRAYTON, ESQ., 8.B. #73685 DAVID R. DONADIO, ESQ., S.B. #154436 FRAMTA SAECHAO, ESQ., 8.B. #267535 ELECTRONICALLY BRAYTON&PURCELL LLP Attorneys at Law sopekr IL EDP 5 Rush Fanding Road County of San Francisco ‘ Novato, California 94948-6169 APR 23 2013 (415) 898-1555 Clerk of the Court Tentative Ruling Contest Email: contestasbestos TR@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 D. ZELINSKY & SONS, INC.’°S MOTION FOR 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 7, 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 § 437c(b), plaintiffs submit the following Separate Statement of Disputed Material Facts in Opposition to Defendant D. ZELINSKY & SONS, INC.’s Motion for Summary Adjudication. PLAINTIFFS' DISPUTED MATERIAL FACTS SUPPORTING EVIDENCE 1. Mr. ROSS worked in proximity to 1. Declaration of Robert Ross, (2-4, painters employed by defendant attached to the Declaration of Framta ZELINSKY & SONS, INC. Saechao (“Saechao Decl.”) as Exhibit A: (“ZELINSKY”) at approximately 25 Deposition Testimony of Robert Ross construction sites between 1960 and 1981, (“Ross Depo”), pp. 806:18-810:17, 952:23- as the ZELINSKY employees mixed, 953:3, 1094:7-16, 1305:14-1307:8, sanded, and swept Kaiser Gypsum 1337:17-1366:4, 1564:13-1575:12, Company, Inc., Hamilton Materials, Inc. 1600:17-1611:23, 1784:11-1819:22, Red Dot, and Paco brand joint compound. 2406:21-24, and 2528:1-2546:21, attached to the Saechao Decl. As Exhibit B. KAinjuredh 9349) pls ZELINS wp 1 FES PLAINTIFFS' SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT D. ZELINSKY & SONS, INC,’S MOTION FOR SUMMARY ADJUDICATIONCo em YW KD hw BR YY 10 2. Mr. ROSS knew the employees were employed by ZELINSKY because their hats, tool boxes, and trucks had the Zelinsky name printed on them. 3. Mr, ROSS worked within 5-20 feet of the ZELINSKY employees as they mixed, sanded, and swept Kaiser Gypsum Company, Inc., Hamilton Materials, Inc. Red Dot, and Paco brand joint compound in his presence at 25 different construction sites between 1960 and 1981. 4, The ZELINSKY employees did not offer Mr. ROSS any respiratory protection and did not section off their work at any site. The ZELINSKY employees worked around Mr. ROSS constantly. 5. The ZELINSKY employees created visible dust when they mixed, sanded, and swept Kaiser Gypsum Company, Inc., Hamilton Materials, Inc. Red Dot, and Paco brand joint compound in Mr ROSS’s presence at approximately 25 construction sites between 1960 and 1981, which Mr. ROSS inhaled. 6. From 1959 until January 1978, Hamilton Materials, Inc.’s drywall-related products contained chrysotile asbestos fiber. 7. The Hamilton Materials-Red Dot joint compound ZELINSKY employees mixed, applied, sanded, and swept in Mr ROSS’s presence between 1960 until 1978 was asbestos containing, Kainjured b340ipls ZELINS wpe 2 2. Declaration of Robert Ross, §3; Deposition Testimony of Robert Ross (“Ross Depo”), pp. 806:18-8 10:17, 952:23- 953:3, 1094:7-16, 1305:14-1307:8, 1337:17-1366:4, 1564:13-1575:12, 1600:17-1611:23, 1784:11-18 19:22, 2406:21-24, and 2528:1-2546:21, attached to the Saechao Decl. As Exhibit B. 3. Declaration of Robert Ross, {5; Deposition Testimony of Robert Ross (“Ross Depo”), pp. 806:18-810:17, 952:23- 953:3, 1094:7-16, 1305:14-1307:8, 1337:17-1366:4, 1564:13-1575:12, 1600:17-1611:23, 1784:11-1819:22, 2406:21-24, and 2528:1-2546:21, attached to the Saechao Decl. As Exhibit B. 4. Declaration of Robert Ross, (6; Deposition Testimony of Robert Ross (Ross Depo”), pp. 806:18-810:17, 952:23- 95333, 28, 1337: 12, 1600: 122, 2406:21-24, and 2528:1-2546:21, attached to the Saechao Decl. As Exhibit B. 5. Declaration of Robert Ross, {{7; Deposition Testimony of Robert Ross (“Ross Depo”), pp. 806:18-810: 953:3, 1094:7-16, 1305:14-1307:8, 1337:17-1366:4, 1564:13-1575:12, 1600:17-1611:23, 1784:11-18 19:22, 2406:21-24, and 2528:1-2546:21, attached to the Saechao Decl. As Exhibit B 6. Deposition of Hamilton Materials, Inc.’s Person Most Knowledgeable, Willis Hamilton taken December 18, 2003, in In te: Complex Asbestos Litigation, San rancisco Superior Court No. 828684, et al., pg.18:20~23, attached as Exhibit 4 to the Declaration of Charles Ay, attached to the Saechao Decl. as Exhibit F. See also Ay Decl., #918 and 26. 7. Deposition of Hamilton Materials, Inc.’s Person Most Knowledgeable Willis Hamilton taken December 18, 2003, in In re: Complex Asbestos Litigation, San Francisco Superior Court No. 828684, et al., pg.18:20-23, relevant excerpts attached as Exhibit 4 to the Ay Decl. See also Ay Decl., 4918 and 26. Frs PLAINTIFFS' SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT BD, ZELINSKY & SONS, INC'S MOTION FOR SUMMARY ADJUDICATIONCo em YW KD hw BR YY 10 Mr. Hamilton’s deposition testimony is admissible in this matter pursuant to San Francisco General Order No. 43 and Cal. Evid, Code § 1291, as Mr, Hamilton is unavailable, and ZELINSKY had notice of Mr. Hamilton’s deposition and had the right and opportunity to cross-examine the witness. Cal. Evid. Code § 240 states (emphasis added): ““[U Jnavailable as a witness’” means that the declarant is any of the following: . . (2) Disqualified from testifying to the matter.” San Francisco Asbestos General Order 43 (hereinafter “G.O. 43" provides a method for conducting Master Depositions. (See generally, G.O. 43). G.O. 43 “is intended to . +» curtail and prevent unnecessary and repetitious discovery whenever possible; provide continuity and efficiency and economy in the completing discovery procedures; [and] bring asbestos litigation to early and meaningful settlement negotiations.” (G.O. 43, court policy C, D, E, emphasis added). “Transcripts of any Master Deposition, may be used .. . in any pending or future case as though individually taken in that case.” (G.O. No. 43, 5(f)). “Notice of Master Depositions shall be provided to all parties identified on the service list... under the caption In Re: Complex Litigation Docket #828684."°(G.0. No. 43 5(e)). Any noticed party has an opportunity to and is “entitled to question the witness.” (G.O. No. 43 5(I)). Given that Brayton? Purcell LLP was present and ZELINSKY had notice of Mr. Hamilton’s depositions taken pursuant to G.O. 43 in In re: Complex Asbestos Litigation, Brayton¢Purcell LLP is prohibited from noticing Mr. Hamilton’s deposition absent stipulation or showing of good cause. Here, no stipulation has been entered into and no such good cause exists. The only issue in this motion concerning Hamilton Materials, Inc. is whether plaintiff can show that Hamilton “Red-Dot” was asbestos-containing. The composition of the materials contained in Hamilton Materials, Inc. joint and taping compounds has been covered extensively in Mr. Hamilton’s prior depositions. Any additional deposition of KAinjuredh 9349) pls ZELINS wp 3 FES PLAINTIFFS' SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT D. ZELINSKY & SONS, INC,’S MOTION FOR SUMMARY ADJUDICATIONCo em YW KD hw BR YY 10 8. Kaiser Gypsum’s joint compound products contained asbestos from1953 or 1954, until at least 1974. 9. The Kaiser Gypsum joint compound ZELINSKY employees mixed, applied, sanded, and swept in Mr ROSS’s presence between 1960 until 1974 was asbestos- containing. 10. Kelly-Moore Paint Company, Inc.’s Paco brand joint compound contained chrysotile asbestos from at least 1960 until early 1978, when Kelly-Moore ceased to use asbestos fibers in all of its products. 11. The Paco joint compound ZELINSKY employees mixed, applied, sanded, and Kainjured b340ipls ZELINS wpe 4 Mr. Hamilton to determine asbestos content of Hamilton products would be “unnecessary” and “repetitious” — exactly what G.O. 43 and the present Case Management Order in effect signed by the Court on June 29, 2012, were designed to curtail. As such, Mr. Hamilton is “disqualified from testifying to the matter” pursuant to G.O. 43, thus making him unavailable as a witness pursuant to Cal. Evid. Code § 240. San Francisco General Order No, 43. attached as Exhibit C to the Saechao Deel. 8. Deposition of Kaiser Gypsum’s Person Most Knowledgeable George Kirk, who worked for Kaiser Gypsum as its Director of Research and Development from approximately 1956-1974, taken in In re Complex Litigation, Alameda County Superior Court No. 607734-9 on June 22, 2004, relevant excerpts attached as Exhibit 8 to the Ay Decl. See also Ay Decl., €920 and 26. Mr. Kirk’s deposition testimony is admissible in this matter pursuant to Cal. Evid. Code § 1291, as Mr. Kirk is deceased, and ZELINSKY appeared at Mr. Kirk’s deposition and had the right and opportunity to cross-examine the witness. SSA Death Record of George Kirk, attached Exhibit D to the Saechao Decl. 9. Deposition of Kaiser Gypsum’s Person Most Knowledgeable George Kirk, who worked for Kaiser Gypsum as its Director of Research and Development from approximately 1956-1974, taken in In re Complex Litigation, Alameda County Superior Court No. 607734-9 on June 22, 2004, relevant excerpts attached as Exhibit 8 to the Ay Decl. See also Ay Decl., €§ 20 and26. 10. Deposition of Kelly-Moore Paint Company, Inc.’s Person Most Knowledgeable Douglas Merrill, taken May 31, 2006, attached as Exhibit 6 to the Ay Decl., at pp. 65:14-19, and 74:17-75:6. See also Ay Decl., {19 and 26. 11. Deposition of Douglas Merrill taken May 31, 2006 in In re: Asbestos Litigation, Frs PLAINTIFFS' SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT BD, ZELINSKY & SONS, INC'S MOTION FOR SUMMARY ADJUDICATIONCo em YW KD hw BR YY 10 swept in Mr ROSS’s presence between attached as Exhibit 6 to the Ay Decl., at pp. 1960 until 1978 was asbestos-containing. 65:14-19, and 74:17-75:6. See also Ay Decl., 4419 and 26. Dated: April 23, 2013 BRAY TON*PURCELL LLP By: /s/Framta Saechao Framta Saechao Attorneys for Plaintiffs KAinjuredh 9349) pls ZELINS wp 3 FES PLAINTIFFS' SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT D. ZELINSKY & SONS, INC,’S MOTION FOR SUMMARY ADJUDICATION