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

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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

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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

ROBERT ROSS and JEAN ROSS, ) ASBESTOS
) No. CGC-10-275731
Plaintiffs, )
) PLAINTIFFS' MEMORANDUM OF
Vs. ) POINTS AND AUTHORITIES IN
) OPPOSITION TO DEFENDANT
C.C. MOORE & CO. ENGINEERS; ) MCCLURE ELECTRIC, INC.*S MOTION
Defendants as Reflected on Exhibit I ) FOR SUMMARY JUDGMENT OR, IN
attached to the Summary Complaint ) THE ALTERNATIVE, SUMMARY
herein; and DOES 1-8500. ) ADJUDICATION
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
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PLAINTIFFS' MEMORANDLIM OF POINTS AND AUTHORITIES IN OPPOSETION TO DEFENDANT MCCLURE ELECTRIC, INCS
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONCo em YW KD hw BR YY

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1
INTRODUCTION

Plaintiff, ROBERT ROSS, has in his deposition and discovery responses provided ample
details of how MCCLURE ELECTRIC, INC.’s employees exposed him to asbestos-containing
fireproofing. In his deposition and then later summarized in his written discovery responses,
Mr. ROSS provides the basis for his belief that the fireproofing material disturbed by
MCCLURE in his presence contained asbestos, based on his experience and training with that
material at numerous construction sites during his years in the trade. To establish that
MCCLURE did not disturb asbestos-containing fireproofing in Mr. ROSS’s presence, defendant
presents a declaration from Gary Hedman, an engineer who states not only that fireproofing in
the Mills building, the one site at issue, did not contain asbestos but also that the building’s
HVAC system is completely different from how Mr. ROSS described it in his deposition.
However, even if the assertions in Mr. Hedman’s declaration is true and there is not and never
has been any spray-on fireproofing in the Mills building, Mr. ROSS believes that it must be a
different building in downtown San Francisco that he saw MCCLURE employees doing the work!
he described in his deposition. The name or the exact address of the building and the exact

address of the building is immaterial when discussing how it is that MCCLURE is liable to

Mr. ROSS. As Mr. ROSS explains in his declaration, his 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 which
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
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. This is a triable issue of material fact.

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PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT MCCLURE ELECTRIC, INC’S
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Plaintiffs anticipate that defendant will argue that Mr. ROSS’s declaration which is
submitted herein, contradicts his prior deposition testimony and should, thus, be excluded under

D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21-22.). First, Mr. ROSS does not

contradict a material part of his testimony. The name of the building that he identified
MCCLURE doing work around him is not pertinent to his recollection of how MCCLURE
exposed him to asbestos. Moreover, as discussed below, the D’ Amico case also states that an
apparent contradiction between plaintiff's declaration and his deposition testimony may be
explained by his supplemental declaration. Here, plaintiffs have submitted a declaration from
Mr. ROSS that does just that, and in addition, reaffirms that regardless of the name of the
building, he saw MCCLURE disturbing the old, gray, finer material with fibers sticking out,
spray-on asbestos fireproofing around him. Triable issues of material fact exist. Any potential
arguments as to Mr. ROSS’s credibility is for the trier of fact to consider. The Court cannot grant
summary judgment, as a matter of law,
Ib

STATEMENT OF FACTS

Plaintiff ROBERT ROSS was a career insulator. (Plaintiffs’ Separate Statement of
Disputed Fact (“PSSDF”) No. 1.) Throughout his career as an insulator from 1959 to the early
1990s, Mr. ROSS worked at hundreds of job locations and sites. (Id.)

As he testified in his depasition, 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. (PSSDF No. 2.) At this site, as a journeyman insulator, Mr. ROSS
performed insulation work on air conditioning and heating ducts. (Id.) He did this work over
three different jobs within that time period, for a total of approximately 10 days. (Id.)

Every day that Mr. ROSS was at that building, he saw employees of MCCLURE working
around him. (PSSDF No. 3.) He was able to identify them as employees of MCCLURE based
on their company’s name on their hard hats and other things on the job, like tool boxes. (d.)
Mr, ROSS saw MCCLURE employees hanging pipe on Unistruts to connect the lights or
fixtures. (Id.) To hang pipe, MCCLURE employees hung Unistruts with clamps from the ceiling

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PLAINTIFFS' MEMORANDLIM OF POINTS AND AUTHORITIES IN OPPOSETION TO DEFENDANT MCCLURE ELECTRIC, INCS
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONCo em YW KD hw BR YY

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with rebar. (Id.) The ceilings were covered with a spray-on fireproofing material that
MCCLURE employees would scrape off and shoot their studs through. (id.) On multiple
occasions, Mr. ROSS was within 5 to 25 feet from this work. (Id.)

As he 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. (PSSDF No. 4.) It was dry and dusty when MCCLURE scraped or shot through that
fireproofing material. (Id.) 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. (Id.)

As a career insulator working with and around asbestos-containing materials on
construction sites, Mr. ROSS has come te learn and is able to differentiate between the old,
asbestos-containing fireproofing, and new, non-asbestos containing fireproofing. (PSSDF No,
5.) The older type of fireproofing that contained asbestos had a finer consistency than the new
fireproofing. (Id.) Additionally, the older asbestos-containing fireproofing had fibers that stuck
out of it when viewed up close, whereas the asbestos-free fireproofing did not. (Id.) Mr. ROSS
did not see this later type of fireproofing on jobsites until approximately the mid-1970s. (Id.)

Mr. ROSS learned that the old, finer, gray material with fibers sticking out described above

contained asbestos 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. (Id.) At that job, Mr. ROSS saw the old type

of fireproofing being abated and the new type of fireproofing being applied. (Id.) On that job,
Mr ROSS leamed how to differentiate between asbestos-fireproofing versus the non-asbestos
type. (Id.) 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. (Id.)

Mr. ROSS recently reviewed the declaration of Cary Hedman, who is an engineer at the

Mills Building on 220 Montgomery Street, San Francisco, California. (PSSDF No. 6.) If the

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PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT MCCLURE ELECTRIC, INC’S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONCo em YW KD hw BR YY

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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. (Id.) 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. (Id.) 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. (Id.) 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 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. (id.)

MCCLURE employees did not take any measures to avoid or reduce the creation of dust
from their work. (PSSDF No. 7.) 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.
Cid.)

TL
LEGAL ARGUMENT

A. THE SCOPE OF MCCLURE’S MOTION IS LIMITED TO THE ISSUES
PRESENTED IN ITS MOVING PAPERS

The provisions of Code of Civil Procedure § 437c, which govern the summary
adjudication process, "impose 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.) Regarding the former, "the initial duty to define the issues
presented by the complaint and to challenge them factually is on the defendant who secks a

summary adjudication.” (Conn v. National Can Corp. (1981) 124 Cal. App.3d 630, 638.) This

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PLAINTIFFS' MEMORANDLIM OF POINTS AND AUTHORITIES IN OPPOSETION TO DEFENDANT MCCLURE ELECTRIC, INCS
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONCo em YW KD hw BR YY

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duty necessarily requires a defendant seeking summary judgment to set forth in "the moving
papers .. . with specificity (1) the issues tendered by the complaint or answers that are pertinent
to a summary adjudication motion; and (2) each of the grounds of law on which the moving party!
is relying in asserting that the action has no merit or there is no defense to the action.” (Juge,
supra, 12 Cal. App.4th at p. 67.) More specifically, the moving party must set forth in its separate}
statement of undisputed material facts all of the facts upon which it bases its motion. (United
Community Church v, Garcin (1991) 231 Cal. App.3d 327, 337.) This requirement serves "to
inform the opposing party of the evidence to be disputed to defeat the motion." (Id.) If the
separate statement does not set forth a fact, for purposes of the motion, the fact "does not exist.”
(id.)

“Thus, when the ‘fact’ is not mentioned in the Separate Statement, it is irrelevant that
such fact might be buried in the mound of paper work filed with the court, because the statutory

purposes are not furthered by unhighlighted facts.” (North Coast Business v. Nielsen

Construction Company (1993) 17 Cal-App.4th 22, 31.

Here, the only issue raised by defendant in its papers is whether plaintiffs have evidence
the MCCLURE exposed Mr. ROSS to asbestos. There are no other issues properly before the
Court’. Defendant has not raised in its moving papers any other issues such as medical
causation, whether Mr. ROSS’s exposure was a substantial factor in causing his asbestos-related
disease, or whether MCCLURE had a duty to exercise reasonable care to Mr. ROSS.

B. MR. ROSS HAS ADEQUATE FOUNDATION FOR HIS OPINION THAT THE

FIREPROOFING HE SAW MCCLURE EMPLOYEES DISTURB CONTAINED)
ASBESTOS.

Lay witness testimony, even when opinion testimony, is clearly admissible under
California law in circumstances such as these, where the witness’s testimony is rationally based
on his knowledge and perceptions acquired during his career as an insulator. Defendant can cite
to no legal authority that a lay witness can never testify as to whether certain products contained

asbestos if a proper foundation is laid as to that witness's personal knowledge. Evidence Code

! Plaintiffs have dismissed their claim for Strict Products Liability, therefore, defendant’s Motion for
Summary Adjudication of that issue is now moot.

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PLAINTIFFS' MEMORANDLIM OF POINTS AND AUTHORITIES IN OPPOSETION TO DEFENDANT MCCLURE ELECTRIC, INCS
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONCO OW YN DR A BY De

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§ 800 states that the opinion testimony of a witness who is not testifying as an expert “is limited
to such an opinion as is permitted by law, including but not limited to an opinion that is:
(a) Rationally based on the perception of the witness: and (b) Helpful to a clear understanding of
his testimony.” Evidence Code § 702(b) states that a witness’s personal knowledge “may be
shown by any otherwise admissible evidence, including his own testimony.” Nothing in this
provision states that only experts may testify as to matters that may be within. a percipient
witness’s personal knowledge.

The trial court has long had the discretion to allow the opinions of lay witnesses, and the
propriety of it depends upon the facts of the case:

it is argued against the first three questions that they were improper, in calling for

the opinion or conclusion of the witness and not for the facts... The true rule is

simple and, so far as this state is concerned, well established: to permit, or to

tefuse to permit, such questions is a matter resting largely in the discretion of the

trial court, which discretion will not here be reviewed unless it is made plain that

the court's ruling in admitting the evidence has worked an injury. Generally

speaking, the admission of the answer to such a question cannot work an injury

where a fair latitude upon cross-examination is allowed, for under such

cross-examination the facts are certain to be adduced.
Nolan v. Nolan, 155 Cal. 476, 480-481 (Cal. 1909).
California case law has consistently made it clear that:

opinion testimony by a lay witness is admissible if it is based on the witness's

perception and helpful to a clear understanding of the witness’s testimony.

Opinion testimony of a lay witness may be particularly helpful when the matters

observed by the witness may be too complex or subtle to enable the witness

accurately to convey them without resorting to the use of conclusory descriptions.
Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 112. (See, also, Angelus Chevrolet

v, State of California (1981) 115 Cal.App.3d 995, 1001.)

In 2002, nine decades after Nolan, the California Supreme Court reaffirmed the
admissibility of conclusory lay testimony, in that case when it was based on knowledge the
witness had acquired through his career:

Here, Hess’s opinion was based on his personal observations that defendant was
being “very defiant” about the court order and physically stood with his hands at
his side and left foot forward. On this record, we cannot say that Hess’s testimony
lacked a rational basis, or that it failed to clarify his testimony. Moreover,
perceptions such as those formed by Hess are sufficiently within common.
experience, and certainly within the experience of a correctional sergeant like
Hess who had 15 years of security experience at a prison hospital. The trial court

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PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT MCCLURE ELECTRIC, INC’S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONCO OW YN DR A BY De

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acted well within its discretion in permitting the lay opinion testimony. People v.

Farnam (2002) 28 Cal.4th 107, 153-154. (Emphasis added.)

The admissibility of knowledge acquired through one’s work in a particular field was
discussed specifically with reference to asbestos-containing products in Riverview Fire

Protection District v. Workers’ Compensation Appeals Board (1994) 23 Cal.App.4th 1120.

However, in the argument and authorities portion of its petition employer does not
argue that applicant failed to prove the requisite exposure. Employer could not
reasonably make that argument because applicant presented ample substantial
evidence of exposure, which the WCJ and the Board believed and which we must
accept.

For example, applicant introduced in evidence an IARC monograph which
showed that asbestos, soots, tars and mineral oils cause cancer in the
gastro-intestinal tract, Applicant testified that he had been trained to recognize
materials encountered in fire fighting. He was able to identify asbestos. During his
years as a firefighter, he inhaled asbestos dust and smoke from roof shingles and
from insulation around pipes, hot water heaters and furnaces. Expert testimony
was not required to prove that applicant was exposed to asbestos.

Riverview, supra, 23 Cal.App.4th at 1125,

Here, where the witness has years of experience with asbestos products and not only has been
trained to identify them (like the firefighter in Riverview) but has physically worked with them,
he need not be qualified as an expert to give his testimony that a product contained asbestos. His
conclusion is based upon his perception and has foundation in common experience, just as

Mr, Hess’s conclusion abut a person’s state of mind did.

Here, Mr. ROSS is not providing opinions on asbestos fiber counts, causation, the laws
applicable at the time of exposure, findings in the medical literature, etc.; he is testifying about
what he observed during his ordinary work. As a career 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. As he explains in his declaration, the older type of fireproofing that contained
asbestos had a finer consistency than the new fireproofing. Additionally, the older ashestos-
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

ATA
NDANT MCCLURE ELECTRIC, INC."S,
CATION

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PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY AD)Co em YW KD hw BR YY

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with fibers sticking out described above contained asbestos 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 type of
fireproofing being applied. On that job, Mr ROSS learned 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. To the extent that Mr. ROSS
forms opinions or draws conclusions, rather than just laying out facts from which the trier of fact
can draw reasonable inferences, those opinions or conclusions are rationally based and helpful to
a clear understanding of his testimony.

cC. THE DECLARATION OF ROBERT ROSS, WHICH DOES NOT
CONTRADICT A MATERIAL FACT IS ADMISSIBLE

Plaintiffs anticipate that defendant may object to the declaration of Mr. ROSS based on
the California Supreme Court’s holding which “bars a party opposing summary judgment from
filing a declaration that purports to impeach his or her own prior sworn testimony.” (Scalf v.
D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1521-22 citing and clarifying D’Amico v.
Board of Medical Examiners (1974) 11 Cal.3d 1, 21-22.) The cases are clear, however, that
summary judgment shall not be granted on the basis of “tacit admissions or fragmentary and
equivocal concessions.” (Scalf, 128 Cal-App.4th at 1523, citations omitted.) “For summary
judgment purposes, deposition answers are simply evidence. Subject to the self-impeachment
limitations of D’Amico, they are considered and weighed in conjunction with other evidence.”
(id. at 1522, citations omitted.) The D’Amico case also states that an apparent contradiction
between plaintiff's declaration and his deposition testimony may be explained by his
supplemental declaration and other evidence. (Niederer v. Ferreira (1987) 189 Cal.App.3d
1485, 1503.)

Here, The relevant case law allows for such a declaration.

dif

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PLAINTIFFS' MEMORANDLIM OF POINTS AND AUTHORITIES IN OPPOSETION TO DEFENDANT MCCLURE ELECTRIC, INCS
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dD. TRIABLE ISSUES OF MATERIAL FACT EXIST REGARDING PLAINTIFF'S
EXPOSURE TO ASBESTOS FOR WHICH MCCLURE IS LIABLE

“The function of the trial court in ruling on a motion for summary judgment is merely to
determine whether such issues of fact exist, not to decide the merits of the issues themselves.”
(Furla v. Jon Douglas Co. (1998) 65 Cal App.4th 1069, 1076-77, emphasis added.) “The primar
duty of the trial court is to decide whether there is an issue of fact to be tried. If it finds one, it is
then powerless to proceed further, but must allow such issue te be tried by a jury unless a jury
trial is waived.” (Walsh v. Walsh (1941) 18 Cal.2d 439, 441, emphasis added.) “If an issue of
fact is present the trial court abuses its discretion in granting such a motion.” (Black v. Sullivan
(1975) 48 Cal. App.3d 557, 567.)

“The aim of the [summary judgment] procedure is to discover, through the media of
affidavits, whether the parties possess evidence requiring the weighing procedures of a trial.”

(Joslin v. Marin Municipal Water District (1967) 67 Cal.2d 132, 147.) “In examining the

sufficiency of affidavits filed in connection with the motion, the affidavits of the moving party
are strictly construed and those of his opponent liberally construed, and doubts as to the
propriety of granting the motion should be resolved in favor of the party opposing the
motion. (Id., emphasis added.) Additionally, the facts alleged in the affidavits of the party
opposing the motion must be accepted as true.” (Herber v. Yaeger (1967) 251 Cal. App.2d
258, 262, emphasis added.) Under no reasonable interpretation of this well-established rule can
Mr. ROSS’s declaration warrant summary judgment in favor of MCCLURE in this matter.

Mr. ROSS’s declaration. in this matter is to be liberally construed and accepted as true. While
defendant may argue that Mr. ROSS’s inconsistent testimony given in his deposition damages his
credibility, it is for the trier of fact, not the Court, to consider and evaluate.

Here, there are triable issues of material fact as to whether or not Mr. ROSS was exposed
to asbestos as a result of MCCLURE’s activities. Mr. ROSS reaffirms his recollection of
MCCLURE hanging pipe on Unistruts to connect the lights or fixtures which involved the
scraping and disturbance of an old, gray, finer fireproofing material with fibers sticking out. This|

work is not dependent on the name of the building. Mr. ROSS has a distinct enough memory of

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PLAINTIFFS' MEMORANDLIM OF POINTS AND AUTHORITIES IN OPPOSETION TO DEFENDANT MCCLURE ELECTRIC, INCS
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the jobs. The exact location or address of the building in which this work took place is not
relevant to the issue of whether or not MCCLURE’s activities around Mr. ROSS caused him to
breathe asbestos dust. As Mr. ROSS states, Mr. Hedman’s declaration does not change the facts
that MCCLURE performed the work that he described in his deposition. At best, Mr. Hedman’s
declaration merely creates a triable issue of material fact, in light of Mr. ROSS’s recollection of
the relevant events. As such, MCCLURE’s motion must be denied.
CONCLUSION

For the reasons stated herein, plaintiffs respectfully request that this Court deny
MCCLURE ELECTRIC, INC.’s Motion for Summary Judgment because triable issues of
material fact exist, Mr. ROSS’s deposition and declaration are admissible to demonstrate that
MCCLURE exposed him to asbestos-containing fireproofing material at some downtown San
Francisco high-rise building between 1967 and 1972.
Dated: 4/25/13 BRAYTON*PURCELL LLP

By: /s/ Anne T. Acuna

Anne T. Acufia
Attorneys for Plaintiffs

[To comply with Department 503's rule regarding tentative rulings, you must email the
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.]

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PLAINTIFFS' MEMORANDLIM OF POINTS AND AUTHORITIES IN OPPOSETION TO DEFENDANT MCCLURE ELECTRIC, INCS
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONBRAYTON@PURCELL LLP

ATTORNEYS AT LAW
222 RUSH LANDING ROAD.

PO BOX 6169
NOVATO, CALIFORNIA 94948-6169

(415) 898-1555

oD O02 6 IW DR hw BR WD

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 banding Road,
P.O. Box 6169, Novato, California, 94948-6169.

On | OS: 12 , | electronically served (E-Service), pursuant to General Order
No. 158, the following ocuments:

PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION
TO DEFENDANT MCCLURE ELECTRIC, INC.’°S MOTION FOR SUMMARY
JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION;
DECLARATION OF ANNE T, ACUNA IN SUPPORT OF PLAINTIFFS’
OPPOSITION TO DEFENDANT MCCLURE ELECTRIC, INC.’S MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, ‘SUMMARY
ADJUDICATION; PLAINTIFF’S RESPONSE TO DEFENDANT MCCLURE
ELECTRIC, INC.’S SEPARATE STATEMENT OF UNDISPUTED FACTS,
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; PLAINTIFFS’ EVIDENTIARY OBJECTIONS TO DEFENDANT
MCCLURE ELECTRIC, INC.’S MOTION FOR SUMMARY JUDGMENT OR, IN
THE ALTERNATIVE, SUMMARY ADJUDICATION; [PROPOSED] ORDER
DENYING DEFENDANT MCCLURE ELECTRIC, INC.’S MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY
ADJUDICATION

on the interested parties in this action by causing 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 was transmitted by Lexis-Nexis E-Service and the transmission
was reported as complete and without error.

Executed on Lt ‘ as : | 3 , at Novato, California.

I declare under penalty of perjury under the laws of the State of California that the

foregoing is true and correct.
5
ngela Potterfield Pracade otal

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

PROOF OF SERVICE BY E-SERVICEDate Created:
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4/22/2013-1:44:25 PM

Brayton-Purceli Service List

Created by: LitSupport - Servicebist - Reporting
Matter Number: 19349.004 - Robert Ross

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

Pribuss Engineering, Inc. (PRIBUS)

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

Bishop, Barry, Drath
Watergate Tower IT
2000 Poweil Street, Suite 1425
Emeryville, CA 94608
510-596-0888 510-596-0899 (fax)
Defendants:

Foley Electric Co. (FOLELE)

Buty & Curliano
555- 12" Street, Suite 1280
Oakland, CA. 94607
510-267-3000 510-267-0117 (fax)
Defendants:
Critchfield Mechanical, Inc. S RIMEC)
Harold Beasley Plumbing an
(BEASLY)
$.J. Amoroso Construction Co., Inc.
{AMOCON)

Foley & Mansfield PLLP
300 Lakeside Drive, Suite 1900
Oakland, CA 9461 2
510-590-9500 510-590-9595 (fax)
Defendants:
Acco Engineered Systems, Inc.
(ACCHEA
D.W. Nicholson Corporation (DWNICH)
Fluor Corporation (FLUOR)
Lone Star Industries, Inc. (LNSTR)
aun Interior Systems-North

an Mulder Sheet Metal, Inc. (VANMSM)

Heating, Inc.

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 company ALBAY)

Cahill Construction Co., Inc. (CAHILC}
Cahill Contractors, Inc. (CAHILL:
Cupertino Electric, Inc. (CUPELE)

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
138 Main Street, 20° Floor
San Francisco, CA 94105
415-808-0300 415-808-0333 (fax)
Defendants:
A. Teichert & Son, Inc. ATE
Bayer Cropscience Inc. (BAYCRO)}
Domco Products Texas, L.P. (DOMCO)
Perini Corporation (PERCOR)
Rountree Plumbing & Heating Inc.
(RNTPLU)
Swinerton Builders (SWINBU)

Cooley Manion Jones, LLP

201 Spear Street

Suite 1800

San Francisco, CA 94105
415-512-438] 415-512-6791 (fax)
Defendants:

Temporary Plant Cleaners, Inc. (TEMPLA)

Gordon & Rees LLP
Shari Weintraub, Esq.
101 West Broadway, 16" Floor
San Diego, CA 92161
619-696-6700 619-696-7124 (fax)
Defendants:
Marshco Auto Parts, Inc. (MARAPI)

Run By : Porterfield, Angela

Bassi, Edlin, Huie & Blum LLP
500 Washington Street
Suite 700
San Francisco, CA 94114
415-397-9006 415-397-1339 (fax)
Defendants:
Balliet Bros. Construction Corporation
(BALBRQ)
IT. Thorpe & Son, Inc. (THORPE)
Malm Metal Products, Inc. (MALMSM)

Berry & Berr
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 94612
510-444-6800 510-835-6666 (fax)
Defendants:

California Drywail 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 2000
San Francisco, CA 94111
415-986-5900 415-986-8054 (fax)
Defendants:
Goodyear Tire & Rubber Company, The
(GOODYR)Date Created: 4/22/2013-1:44:25 PM

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Brayton~Purcell Service List

Created by: LitSupport - Servicebist - Reporting

Matter Number:

Haas & Najarian, LLP
58 Maiden Lane
Second Floor
San Francisco, CA 94108
415-788-6330 415-391-0555 (fax)
Defendants:

McClure Electric, Inc. (MCCLUR)

Law Offices of Glaspy & Glaspy, Inc.
One Walnut Creek Center
100 Pringle Avenue, Suite 750
Walnut Creek, CA $4596
925-947-1300 925-947-1594 (fax)
Defendants:

Fairmont Hote! Company (FAIRH)

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

Allied Fire Protection (ALLFIR)

Selman Breitman LLP
33 New Montgomery
6" Floor
San Francisco, CA 9410:
415-979-0400 415-979. 099 (fax)
Defendants:

Rountree Plumbing & Heating Inc.
(RNTPLU)

Walsworth, Franklin, Bevins & McCall,

i  vlontgome Street, 9" Floor
San Francisco, CA 941 41
415-781-7072 415-391-6258 (fax)
Defendants:
D. Zelinsky & Sons, Inc. (ZELINS)
Duro Dyné Corporation (DURODN)

19349.004 - Robert Ross

Hake Law, A Professional Corporation
655 Montgomery Street
Suite 100
San Francisco, CA 94111
415-926-5800 415-926-5801 (fax)
Defendants:

Advance Mechanical Contractors, Inc.
(ADVMEC)

Anderson, Rowe & Buckley, Inc. (AR&B)

Bell Products Inc. (BELLPR)

ppraee Investment Company, Inc.

Oene Jectrical Company, Inc,
(COLELC)
Emil }, Weber Electric Co. (EMILIW)

Low, Ball & Lynch

505 Montgomery Street, 7° Floor
San Francisco, CA 94131-2584
415-981-6630 415-399-1506 (fax)
Defendants:

Giamy mpotini de Co. (GIAMPO)
Pacific Mechanical Corporation
(PACMCR)

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

General Mills, Inc. (GMILLS)

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

McClure Electric, Inc. (MCCLUR)

Run By : Porterfield, Angela

Imai, Tadlock, Keeney & Cordery, LLP
100 Bush Street, Suite 1300
San Francisco, CA 94104
415-675-7000 415-675-7008 (fax)
Defendants: Inc. (CLS!
ausen-Patten, Inc. NPT)
Commair Mechanical Services
(COMMAR;
Henry C, Beck Company (HCBECK)
Webcor Builders, Inc. (WEBCOR)

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
San Francisco, CA 9411
415-788-8354 415-788- 4625 (fax)
Defendants:

iW. MeClenahan Company, Inc.
(WMCCL 1

Red Top Electric Co, Emeryville, Inc,
(REDELE)

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:

Red ee Electric Co. Emeryville, Inc.
(REDE