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

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                                ALAN R. BRAYTON, ESQ., 8.B. #73685
DAVID R. DONADIO, ESQ., S8.B. #154436

2 || FRAMTA SAECHAO, ESQ., 8.B. #267535 ELECTRONICALLY
BRAYTON&PURCELL LLP
3}] Attorneys at Law sapeky IL ED...
222 Rush Landing Road County of San Francisco ‘
41 P.O. Box 6169
Novato, California 94948-6169 APR 23 2013
5 }] (415) 898-1555 . Clerk of the Court
Tentative Ruling Contest Email: contestasbestosTR@braytonlaw.com BY: ALISON AGBAY
6 Deputy Clerk
Attomeys for Plaintiffs
4
8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO
10
11 | ROBERT ROSS and JEAN ROSS, ) ASBESTOS
) No. CGC-10-275731
12 Plaintiffs, )
£ ) PLAINTIFFS’ MEMORANDUM OF
2 13 | vs. ) POINTS AND AUTHORITIES IN
g ) OPPOSITION TO DEFENDANT D.
: 14} C.C. MOORE & CO. ENGINEERS; )  ZELINSKY & SONS, INC.’S MOTION
x Defendants as Reflected on Exhibit | ) FOR SUMMARY ADJUDICATION
3 15 | attached to the Summary Complaint herein; )
g and DOES 1-8500. )
€ 16 Date: May 7, 2013
s Time: 9:30 a.m.
g 17 Dept: 503, Hon. Teri L. Jackson
Trial Date: June 10, 2013
18 Action Filed: December 17, 2010
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Hl.

TABLE OF CONTENTS

LEGAL ARGUMENT... ... 0.06 ec nee ene ene ee 3

A.

THE SCOPE OF ZELINSKY’S MOTION IS LIMITED TO THE ISSUES
PRESENTED IN ITS SEPARATE STATEMENT OF UNDISPUTED
MATERIAL FACTS, 2.0000 e eee e eens 3

PLAINTIFFS DO NOT CLAIM ZELINSKY TO BE LIABLE BASED
ON THEORIES THAT THEY OPERATED OR CONTROLLED ANY
PREMISE WHERE PLAINTIFF WORKED. ............-...-.-2-2----- 4

ZELINSKY MISAPPREHENDS THAT PLAINTIFFS’ THEORY OF
LIABILITY INCLUDES LIABILITY FOR ITS EMPLOYEES’

NEGLIGENT AND UNSAFE HANDLING OF ASBESTOS-CONTAINING
MATERIALS THEREBY CAUSING PLAINTIFF TO BE EXPOSED....... 5

DEFENDANT FAILED TO SHIFT ITS BURDEN OF PROOF SHOWING
THAT PLAINTIFFS CANNOT ESTABLISH ONE OR MORE ELEMENTS
OF THEIR CAUSES OF ACTION BY ANY MEANS. ...............04. 7

TRIABLE ISSUES OF MATERIAL FACT EXIST REGARDING
PLAINTIFF’S EXPOSURE TO ASBESTOS FOR WHICH ZELINSKY IS
LIABLE, 0. nent teens 10

1. The Deposition Testimony of the Persons Most Qualified/
Knowledgeable for Hamilton Materials, Inc., Kaiser Gypsum
Company, Inc., and Kelly-Moore Paint Company, Inc. is
Admissible ee eee ee enter tnt e nents if

2. Plaintiffs’ Expert Declaration Must Be Liberally Construed and
are Entitled to All Favorable Inferences. Any Questions as to
Foundation Go to the Weight and Not the Admissibility of the
Experts’ Opinion. 0.0.6.0... eee eee eee 13

CONCLUSION, «0. ee een een atten teens 20

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TABLE OF AUTHORITIES

CASES

Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826.000.000.000 cece 7, 8,10
Allen vy, Superior Court (1984) 151 Cal. App.3d 447.0000 000 e cece eee 4
Andrews v. Foster Wheeler (2006) 138 Cal.App.4th 96.......0.00.....0....000- 13, 18, 19
Bell v. Mason (2011) 194 Cal.App.4th 1102... 00000000000 eee 15,16
Biles v. Exxon Mobil Corp. (2004) 124 Cal App.4th 1315.00.00. 00000. 0 sce eee eee 5
Black v. Sullivan (1975) 48 Cal-App.3d 557.020.000.000 0 02 e eee 13,15
Buckwalter v. Airline Training Center (1982) 134 Cal.App.3d 547........ 00.0... 0000005 5
Chevron U.S.A., Inc. v. Super, Ct. (Cobb) (1992) 4 Cal App.4th 544, 200. 8
Conn vy. National Can Corp. (1981) 124 Cal.App.3d 630. .....0.0..0000..0.0....-020-0-- 3
Cooper v. Board of Medical Examiners (1975) 49 Cal.App.3d 931... 00.00. 5
Dee v. PCS Property Management, Inc, (2009) 174 Cal. App.4th 390. 20... 4
Fleet v. CBS, Inc. (1996) 50 Cal-App.4th 19LL. 00 eee 4
Furla v. Jon Douglas Co. (1998) 65 Cal.App.4th 1069.0... 0.0. 1
Grahn v, Tosco Corporation (1997) 58 Cal.4th 1373. 000... 5
Hanson v. Grode (1999) 76 Cal. App.4th 601. 2.00... occ eee eee eee 3
Herber v. Yaeger (1967) 251 Cal App.2d 258.000... nee eee 3
Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108. ... . 19, 20
Joslin v. Marin Municipal Water District (1967) 67 Cal.2d 132.......0. 0000.00. 0c 3
Juge v. County of Sacramento (1993) 12 Cal. App.4th 59.00 cee eee 3
Kaplan vy. Superior Court (1971) 15 Cal App.3d 785. 0000... eee 14
Kelley v. Trunk (1998) 66 Cal. App.4th 519. 00.00 3
Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659. 0 cee eee ee 5,6
McGonnell v. Kaiser Gypsum (2002) 98 Cal. App.4th 1098... 0.0.0.0... 0.0... ee eee 16-18
Miranda v. Bomel Construction Co., Inc. (2010) 187 Cal.App.4th 1326. ........0......0. 6
North Coast Business Park v. Nielsen Construction Co. (1993) 17 CaLApp.4th 22.......0.. 4
People v. Bassett (1968) 69 Cal.2d 122.0... 0.0. c ee cc cece eee 5
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TABLE OF AUTHORITIES (Cont'd.)

CASES (cont’d.}

People v. Guntert (1981) 126 Cal.App.3d Supp. 1.0.60. ee eee eee 14
People v. Stuller (1970) 10 Cal.App.3d 582. 0.0... ccc cece ene eee 15
Powell v. Kleinman (2007) 151 Cal. App.4th 112.000.0000 eee eee 13
Privette v. Superior Court (1993) 5 Cal. 4th 689. 0... eee eee 5.6
Ruiz v. Minnesota Mining & Manufacturing Co. (1971) 15 Cal App.3d 462.............. 14
Saller v. Crown Cork & Seal Co., Inc. (2010)187 Cal. App.4th 1220.........0........-. 19
San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308........ 4
Seabright Insurance Co. v. U.S. Airways, Inc, (2011) 52 Cal. 4th 590. 20... eee 5,6
Walsh v. Walsh (1941) 18 Cal.2d 439.0000. eee li
Whitmire v. Ingersoll-Rand (2010) 184 Cal.App.4th 1078.00.00... 0.000. e cee eee eee 19
STATUTES

California Code of Civil Procedure § 437¢ 0. cece cece rete e ete e enn eeee 3
California Code of Civil Procedure § 437c(a).. 000. 4
California Code of Civil Procedure § 437c(b)..0. 0.0.00 eee cence e eee eee 7
California Code of Civil Procedure § 437c(D)(1). oo cece cece eee 4
California Code of Civil Procedure § 437c(0)(2), . 0... ccc ees 7
California Code of Civil Procedure § 437¢(p)(2). 2... 00. cece cee eens 7
California Evidence Code § 240. 0. eee tee eee eee eens 12
California Evidence Code § 351. 0. ence tence ee eene 14
California Evidence Code § 801. 00... ccc eee eee eens 16
California Evidence Code § 801(b).. 00 cece teen eee e eens 18
California Evidence Code § 1291. eee ener e ete enae 11, 13
California Civil Code section 1714.00.00. ccc cect eee een enter en eee 6
Mt

Me

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TABLE OF AUTHORITIES
OTHER AUTHORITY
California Rules of Court, Rule 3.3150(d).. 0. eee eee 3
San Francisco General Order No. 43...00 00 000s il
San Francisco General Order 43, 5(f). 20. eee eee 12
San Francisco General Order No. 43 Se). oo. eee 12
San Francisco General Order No. 43 5). 2.2 cee eee eee 12

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L
INTRODUCTION

Defendant D. ZELINSKY & SONS, INC. (“ZELINSK Y”) apparently misunderstands
the claims plaintiff ROBERT ROSS has brought against it for the negligence of its own
employees who directly exposed Mr. ROSS. Instead, ZELINSKY argues only that plaintiffs
lacks evidence to prove the theory of premises owner liability that plaintiffs do not claim, e.g.
that plaintiffs do not have or cannot obtain evidence that ZELINSKY directly control the
premises and plaintiff's work that caused him injury. ZELINKSY also argues plaintiffs do not
have or cannot obtain evidence that ZELINSKY is strictly liable. This latter point is moot as
plaintiffs will dismiss the strict liability cause of action, Therefore, the only issue ZELINSKY
argues is that plaintiffs cannot establish ZELINSKY is liable under the premise
owner/contractor cause of action.

ZELINSKY is liable to plaintiffs for its negligence under contractor liability,
ZELINSKY ignores Mr. ROSS’s testimony and discovery responses where he describes how
ZELINSKY employees 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 from 1960 through 1981, particularly from 1960 through 1978. Additionally,
plaintiffs cite to deposition transcripts of Persons Most Knowledgeable/Qualified and General
Order No. 129 Interrogatory responses of Kaiser Gypsum, Hamilton Materials, and Paco brand
joint compound in which they admit the joint compound products at issue were asbestos-
containing. Defendant’s claim that plaintiffs lack evidence establishing ZELINSKY’s
contractor liability ignores this testimony and substantive discovery responses. Plaintiff's
testimony, considered along with his discovery responses, is not factually devoid, and defendant
has therefore failed to make the requisite showing to shift the burden of production to plaintiffs
as to ZELINSKY’s contractor liability.

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IL.
STATEMENT OF FACTS

Plaintiff ROBERT ROSS was deposed in this action from July 12, 2011 through July
15, 2011, August 8, 2011 through August 11, 2011, and from September 26, 2012, through
September 28, 2012.

Mr. ROSS worked in proximity to painters employed by Defendant ZELINSKY at
approximately 25 construction sites between 1960 and 1981, as the ZELINSKY employees
mixed, sanded, and swept Kaiser Gypsum Company, Inc., Hamilton Materials, Inc. Red Dot,
and Paco brand joint compound. (Plaintiffs’ Separate Statement of Disputed Facts “PSS”

No, 1,) Plaintiff knew the employees were employed by ZELINSKY because their hats, tool
boxes, and trucks had the ZELINSKY name printed on them. (PSS No. 2.) 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
Mr. ROSS’s presence at 25 different construction sites between 1960 and 1981. (PSS No. 3.)

The ZELINSKY employees did not offer Mr. ROSS any respiratory protection and did
not section off their work at any site. The ZELINSKY employees and Mr. ROSS were in each
other’s work spaces constantly. (PSS No. 4.) 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. (PSS No. 5.)

Willis Hamilton, Hamilton Materials, Inc.’s Person Most Qualified/Knowledgeable,
testified that from 1959 until January 1978, Hamilton Materials, Inc.’s drywall-related products
contained chrysotile asbestos fiber. (PSS No. 6.) Therefore, 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. (PSS No. 7.)

George Kirk, Kaiser Gypsum Company, Inc.’s Person Most Knowledgeable/Qualified,
testified that starting in approximately 1953 or 1954, Kaiser Gypsum began incorporating

asbestos in its joint compound products, which continued until at least 1974. (PSS No. 8.) The

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Kaiser Gypsum joint compound ZELINSKY employees mixed, applied, sanded, and swept in
Mr. ROSS’s presence between 1960 until 1974 was asbestos-containing. (PSS No. 9.)

Kelly-Moore Paint Company, Inc.’s Person Most Knowledgeable/Qualified, Douglas
Merrill, testified that 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.
(PSS No. 10.) Therefore, the Paco joint compound ZELINSKY employees mixed, applied,
sanded, and swept in Mr. ROSS’s presence between 1960 until 1978 was asbestos-containing.
(PSS No. 11.)

Tl.
LEGAL ARGUMENT
A. THE SCOPE OF ZELINSKY’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 cach 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.”

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(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
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.)

Here, defendant ZELINSKY argues two main points: (1) plaintiffs have no evidence,
and cannot reasonably obtain any evidence, to prove that ZELINSKY is strictly liable; and (2)
plaintiffs have no evidence, and cannot reasonably obtain any evidence, to prove that
ZELINSKY is liable to plaintiffs under the premises owner/contractor liability cause of action.
Because plaintiffs will withdraw the strict liability cause of action, the only issue is whether
ZELINSKY is liable to plaintiffs under the premises owner/contractor liability cause of action.
ZELINSKY does not dispute the asbestos content of the materials disturbed by ZELINSKY in
Mr, ROSS’s presence, medical causation, or damages.

Moreover, ZELINSKY does not dispute that plaintiff did, in fact, work around its
employees as they mixed, applied and sanded asbestos-containing joint compound. Defendant
does not dispute that Mr. ROSS does, in fact, suffer from an asbestos-related disease. Thus, the
only issue for the Court to decide is whether defendant has successfully met its burden of
showing that plaintiffs have not presented, and cannot present, evidence that ZELINSKY’s
conduct amounts to negligent contractor liability.

B. PLAINTIFFS DO NOT CLAIM ZELINSKY TO BE LIABLE BASED ON

THEORIES THAT THEY OPERATED OR CONTROLLED ANY PREMISE
WHERE PLAINTIFF WORKED

Defendant devotes the second part of its motion erecting and demolishing straw men

theories that plaintiffs do not claim as the basis of ZELINSKY’s liability. Defendant asserts

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that plaintiffs cannot establish liability under various theories of premises owner liability, inter
alia: failed to warn of a dangerous condition on the premises; and negligent exercise of control
over the premises. (Grahn v. Tosco Corporation (1997) 58 Cal.4th 1373.) Plaintiffs do not
claim liability on this basis. Rather, plaintiffs’ claim against ZELINSKY is for the negligence
of its own employees exposing Mr. ROSS to asbestos while performing work in his presence.
Defendant fundamentally misunderstands California law when it attempts to assert that these
special theories of premises owner or contractor liability are exclusive.

There is no holding anywhere among the cases cited by defendant ~ or elsewhere in
California jurisprudence — which exonerates a hiring party from the plain vanilla, garden-
variety, negligence that forms the basis of plaintiffs’ claims. To the contrary, California law
expressly recognizes liability of precisely the sort claimed by plaintiffs in the instant case: “In
short, if a hirer’s own employees, working side-by-side with the employees of a contractor,
negligently injure one of the coentractor’s employees, the hirer may be held liable under the
normal principles of respondent superior for its own employees’ negligence.” (Biles v. Exxon
Mobil Corp. (2004) 124 Cal.App.4th 1315, 1332.)

Cc. ZELINSKY MISAPPREHENDS THAT PLAINTIFFS’ THEORY OF

LIABILITY INCLUDES LIABILITY FOR ITS EMPLOYEES’ NEGLIGENT

AND UNSAFE HANDLING OF ASBESTOS-CONTAINING MATERIALS
THEREBY CAUSING PLAINTIFF TO BE EXPOSED

ZELINSKY erroneously asserts that plaintiffs’ cause of action against it involves
something it characterizes as “premises liability.” From the arguments it advances, ZELINSKY
appears to believe that it can only be liable under the specialized standards for liability set forth

in Seabright Insurance Co. v. U.S. Airways, Inc. (2011) 52 Cal 4th 590, and the

Privette/Kinsman line of cases. (Privette v. Superior Court (1993) 5 Cal.4th 689; Kinsman v.
Unoeal Corp. (2005) 37 Cal.4th 659).} ZELINSKY, however, fails to understand the plain
language of plaintiffs’ complaint which clearly states that ZELINSKY is liable to plaintiffs as a
result of ZELINSKY’s negligence in allowing asbestos-containing products to be cleaned up
and disturbed by its own workers in a negligent and unsafe manner, thereby causing injury to

plaintiff ROBERT ROSS.

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80. Prior to and at said times and places, said Premises Owner/Contractor Liability Defendants,
and each of them, respectively, caused certain asbestos- and silica-containing insulation, other
building materials, products and toxic substances to be constructed, installed, maintained, used,
supplied, replaced, and/or repaired on each of the aforesaid respective premises, by their own
workers... and caused the release of dangerous quantities of toxic asbestos fibers and other toxic
substances into the ambient air and thereby created a hazardous and unsafe condition to
plainti

81. Atall times mentioned herein, said Premises Owner/Contractor Liability Defendants, and

each of them, knew or in the exercise of ordinary and reasonable care should have known,

that the foregoing conditions and activities created a dangerous, hazardous, and unsafe

condition, and unreasonable risk of harm and personal injury to plaintiff...

(Brayton%Purcell Master Complaint, p. 96, J§ 80, 81 (emphasis added), attached as Exhibit E
to the Declaration of Framta Saechao.)

Plaintiffs do not and need not assert liability under the special theory of liability for
“latent hazard” set forth in Kinsman or under a theory of non-delegable duty and retained
control over plaintiff’s work per the Seabright and Privette line of cases. None of the cases
cited and discussed by defendant purport to immunize a premises owner from liability for the
direct negligent activities of its employees which result in injury to others.

Plaintiffs instead contend that ZELINSKY’s liability results from his exposure to
asbestos as a result of the direct negligent activities of ZELINSKY employees. Defendant does
not dispute this. Defendant simply overlooks this evidence of its own direct negligence, instead
insisting that its duty to plaintiffs hung merely on retained control or latent hazards.

Defendant’s fundamental premise, that its duty to plaintiff hinged only on whether it retained

control over plaintiff's work or overlooked a latent hazard, is wrong. As the court made plain in
Kinsman, defendant remains liable for its own negligent conduct. (Kinsman v. Unocal (2005)
37 Cal.4th 659, 672. (“[T]he basic policy of this state set forth by the Legislature in section

1714 of the Civil Code is that everyone is responsible for an injury caused to another by his

want of ordinary care or skill in the management of his property.... The proper test to be applied
to the liability of the possessor of land in accordance with section 1714 of the Civil Code is
whether in the management of his property he has acted as a reasonable man in view of the
probability of injury to others ...”) (emphasis added).) Defendant breached its duty to plaintiff

when its own employees disturbed asbestos-containing materials in plaintiff's presence.

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D. DEFENDANT FAILED TO SHIFT ITS BURDEN OF PROOF SHOWING
THAT PLAINTIFFS CANNOT ESTABLISH ONE OR MORE ELEMENTS OF
THEIR CAUSES OF ACTION BY ANY MEANS

California Code of Civil Procedure § 437c(p)(2) describes the evidentiary burden a
moving defendant must meet:

A Defendant .. has met his or her burden of showing that a cause of action
has no merit if that party has shown that one or more elements of the cause of
action .. cannot be established, or that there is a complete defense to that cause
of action. Once the Defendant... has met that burden, the burden shifts to the
Plaintiff .. to show that a triable issue of one or more material facts exists as to
that cause of action or a defense thereto. (Code of Civil Procedure § 437c(p)(2),
emphasis added. See also the Cal. Supreme Court’s interpretation in Aguilar v.
Atlantic Richfield Co, (2001) 25 Cal.4th 826, 850-851.)

Defendant fails to carry its threshold burden of producing competent evidence

establishing facts negating plaintiffs’ claims. In Aguilar v. Atlantic Richfield Company (2001)
25 Cal.4th 826, the California Supreme Court “clarified the law that courts must apply in ruling
on motions for summary judgment.” The Aguilar court held that “from commencement to
conclusion, the party moving for summary judgment bears the burden of persuasion that there is
no triable issue of material fact and that he is entitled to judgment as a matter of law." (Id. at
845.) "A defendant bears the burden of persuasion that ‘one or more elements of” the ‘cause of
action’ in question ‘cannot be established,’ or that ‘there is a complete defense’ thereto.” (Id. at
849, quoting C.C.P. § 437e(0)(2).)

"Summary judgment law in this state, however, continues to require a defendant moving
for summary judgment to present evidence, and not simply point out through argument, that the
plaintiff does not possess, and cannot reasonably obtain, needed evidence. In this particular at
least, it still diverges from federal law. For the defendant must ‘support[]’ the ‘motion’ with
evidence including ‘affidavits, declarations, admissions, answers to interrogatories, depositions,
and matters of which judicial notice ’ must or may ‘be taken....’" (Id. at 855, quoting C.C.P.

§ 437c(b), italics in original.)

ZELINSKY, as the moving party, has the burden of demonstrating through the

presentation of facts and evidence that plaintiffs cannot establish one or more elements of their

causes of action. “The moving party must show that under no possible hypothesis within the

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reasonable purview of the allegations of the complaint is there a material question of fact which

requires examination by trial.” (Chevron U.S.A., Inc. v. Super. Ct. (Cobb) (1992) 4

CaLApp.4th 544, 548.) “If the defendant does not satisfy its burden as the moving party, the
motion must be denied, and if is unnecessary for the court to consider the plaintiff’s
opposition, if any.” (Id., emphasis added.)

In ruling on the motion, the court must “consider all of the evidence” and “all” of the
“inferences” reasonably drawn therefrom, and must view such evidence in the light most

favorable to the opposing party. (Aguilar v. Atlantic Richfield Company, supra, 25 Cal.4th 826,

843.)

Here, ZELINSKY does not present this Court with all of the evidence. It focuses
primarily on irrelevant theories of liability, giving scant attention to its liability for the direct
activities of its own employees. In claiming that plaintiffs lack evidence of exposure to
asbestos by its employees, ZELINSKY ignores Mr. ROSS’s straightforward testimony on the
issue wherein he identified particular brands of joint compound products that ZELINSKY
employees mixed, applied, sanded, and swept in his presence between 1960 and 1981,
particularly from 1960 through 1978, Mr. ROSS identified Kaiser Gypsum, Hamilton “Red
Dot,” and Paco brand joint compound as brands of joint compound ZELINSKY disturbed in his
presence.

In plaintiffs’ response to Defendant’s Interrogatories, plaintiffs identify numerous
documents to support their cause of action against ZELINSKY for premises owner/contractor
liability, including Mr. ROSS’s deposition transcripts in which he testified that he was exposed
to Kaiser Gypsum, Hamilton “Red Dot,” and Paco brand joint compound mixed and sanded by
ZELINSKY employees in his presence at 25 different job sites between the 1960s and 1970s.
(Plaintiffs’ Response to Defendant D. Zelinsky & Sons, Inc.’s Special Interrogatories, Set One,
pp. 1:21-38:18.).

Plaintiffs cite to information and documents establishing the Paco brand joint compound.
was asbestos-containing: “Kelly-Moore purchased Paco Texture Corporation in December

1960 and manufactured drywall finishing compounds, including joint compounds and wall

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texture products. These drywall finishing compounds, including joint com pounds and wall
texture products, contained asbestos at all times relevant to this action and until at least 1978.
Plaintiffs further identify facts stated in Union Carbide Corporation's purchase order, shipping
and invoice forms dating from 1964 to 1977, which state that Kelly-Moore repeatedly
purchased asbestos fibers from Union Carbide Corp. for use in its PACO drywall accessory
materials.” (Plaintiffs’ Response to Defendant’s Special Interrogatories, Set Two, pp. 9:14-17.)
Moreover, plaintiffs cite to the deposition transcripts and all exhibits attached thereto of
Douglas Merrill. “Mr. Merrill was designated as Person(s) Most Knowledgeable and
Custodian(s) of Records, both past and present, of KELLY-MOORE, as well as corporate
representatives, both past and present, of KELLY-MOORE, including, but not limited to, dn Re
Asbestos Litigation Case No. 2004-03964 commencing on 5-31-2006 and all subsequent dates;
Shipyard and Applicator Cases commencing on November 1, 1984 and February 27, 1985.) In

Volume | of the deposition of Mr. Merrill regarding Asbestos Litigation Case No. 2004-03964,
Mr. Merrill states that “Paco products contained asbestos from 1960-78 (qualified by “some”
but read in context of asbestos removal effort, clear that efforts to remove asbestos did not
commence until early 70s and did not conclude until 1978" (Volume | pg 144:1-177:25).
Plaintiffs also cite to the Deposition transcript of Willis Hamilton, taken December 18,

2003, In Re: Complex Asbestos Litigation (p. 18:20-23), in which Mr. Hamilton testified that

from 1959 until January 1978, Hamilton Materials, Inc.’s joint compound products contained
chrysotile asbestos fiber. Mr. Hamilton testified that from 1959 to 1974, Hamilton Materials,
Inc. did not market a non-asbestos taping compound (Vol. 1, pg. 196:12-17.) Mr. Hamilton
testified that he does not believe that Hamilton Materials, Inc. marketed an asbestos-free
multi-purpose joint compound prior to 1977. (Vol. 1, pg. 197:16-22.) (Id., pp. 26:18-27.)

Plaintiffs cite to the General Order No. 129 Interrogatory Responses of Hamilton
Materials, Inc., Kelly-Moore Paint Company, Inc. and Kaiser Gypsum Company. (Id., pp. 11:6-
11, 11:15-17.)

In its responses, Hamilton Materials, Inc. admits its “Red Dot” joint compound

contained asbestos from 1957 through 1977. (See Exhibit 5 to Ay Declaration filed herewith.)

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Kelly-Moore admits that its Paco brand joint compound contained asbestos from 1958 through
1978. (See Exhibit 7 to Ay Declaration.) And Kaiser Gypsum admits its joint compound
products contained asbestos throughout the 1960s until approximately 1975-1976. (See Exhibit
9 to Ay Declaration.)

Additionally, plaintiffs cite to a wealth of documents and information, including defense
expert testimony, establishing that the joint compound manufactured and disturbed by
ZELINSKY in Mr. ROSS’s presence from 1960 through the 1970s was more likely than not
asbestos-containing. (Id., pp. 23:23-28:2.)

Defendant ignores Mr. ROSS’s testimony, confirmed by his discovery responses, that he
was exposed to various asbestes-containing joint compound as a result of ZELINSKY’s
activities at least 25 construction sites between 1960 and 1981. In failing to address the
Mr. ROSS’s testimony and discovery responses as described above, defendant fails to
demonstrate that plaintiffs do not possess and cannot reasonably obtain evidence that Mr, ROSS
was exposed to asbestos-containing products or materials attributable to ZELINSKY under the
premises owner/contractor theory of liability. Moreover, Mr. ROSS’s deposition testimony and
his responses to defendant’s special interrogatories preclude defendant from successfully
invoking the factually devoid prong of Aguilar. Therefore, defendant fails to shift the burden
and this motion is a non-starter.

Because defendant apparently believes that this conduct “doesn’t count” because it does
not fit within the rubric of “retained control” or “latent hazard” liability, defendant does not
otherwise undertake to demonstrate any deficiency in plaintiffs’ evidence of “garden variety”
negligence. Thus, defendant fails to make the requisite prima facie showing that plaintiffs do
not possess and cannot reasonably obtain evidence that ZELINSKY was negligent when it
removed asbestos-containing pipe insulation in Mr. ROSS’s presence and swept up the same.

E. TRIABLE ISSUES OF MATERIAL FACT EXIST REGARDING

PLAINTIFF'S EXPOSURE TO ASBESTOS FOR WHICH ZELINSKY IS
LIABLE

if the Court should find that ZELINSKY has somehow shifted the burden to plaintiffs,

which it has not, the Court should still deny defendant’s motion as triable issues of material fact

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exist. “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, 1076-7.) “The primary 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 to 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.)

Plaintiffs herein have provided ample evidence that ZELINSKY employees exposed
Mr, ROSS to asbestos, Mr. ROSS’s declaration makes clear that he worked in close contact
with and right along side ZELINSKY employces mixing, applying, sanding, and sweeping
Kaiser Gypsum Company, Inc., Hamilton Materials, Inc. “Red-Dot,” and Paco brand joint
compound at 25 different construction sites between 1960 through 1981. Kaiser Gypsum
Company, Inc., Hamilton Materials, Inc., and Kelly-Moore Paint Company, Inc. (Paco)’s
Persons Most Knowledgeable all admit that during the 1960-1981 time period, they
manufactured asbestos-containing joint compound, including in the Hamilton Materials, Inc.
“Red-Dot,” and Paco brand joint compound. ZELINSKY’s work created visible dust in
Mr. ROSS’s presence, which he inhaled.

i, The Deposition Testimony of the Persons Most Qualified/Knowledgeable

for Hamilton Materials, Inc., Kaiser Gypsum Company, Inc., and Kelly-
Moore Paint Company, Inc. is Admissible

Willis Hamilton, Hamilton Materials, Inc.’s Person Most Qualified/Knowledgeable,
testified that from 1959 until January 1978, Hamilton Materials, Inc.’s drywall-related products
contained chrysotile asbestos fiber. Therefore, 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. 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.

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Cal. Evid. Code § 240 states (emphasis added): “‘[U]navailable 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.O. No. 43 5(e)). Any noticed party has an
opportunity to and is “entitled to question the witness.” (G.O. No. 43 5(1)).

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 plaintiffs
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 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.
Cade § 240.

George Kirk, Kaiser Gypsum Company, Inc.’s Person Most Knowledgeable/Qualified,
testified that starting in approximately 1953 or 1954, Kaiser Gypsum began incorporating

asbestos in its joint compound products, which continued until at least 1974. Therefore, the

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Kaiser Gypsum joint compound ZELINSKY employees mixed, applied, sanded, and swept in
Mr. ROSS’s presence between 1960 until 1974 was asbestos-containing. 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.

2. Plaintiffs’ Expert Declaration Must Be Liberally Construed and are

Entitled to All Favorable Inferences. Any Questions as to Foundation Go
to the Weight and Not the Admissibility of the Experts’ Opinion

The evidence that plaintiffs have presented in this opposition includes declarations by
the plaintiff and by plaintiffs’ expert. This Court must view these declarations liberally. “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.” (Joslin v. Marin Municipal Water District (1967) 67 Cal.2d 132, 147.) 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.)

The general rule of liberality was applied specifically to expert declaration in Powell v.
Kleinman (2007) 151 Cal-App.4th 112. There, attempting to reconcile the decision in Kelley v.

Trunk (1998) 66 Cal-App.4th 519, which concluded that the declaration of the defendant's
expert had to be detailed and with foundation, with the decision in Hanson v, Grode (1999) 76

Cal.App.4th 601, which found that the declaration submitted by the plaintiff did not have to be

detailed, was entitled to all favorable inferences and was deemed sufficient to defeat the

summary judgment motion, the Court concluded:

both the Kelley and Hanson courts properly applied the rule that, when
considering the declarations of the parties” experts, we liberally construe the
declarations for the plaintiff's experts and resolve any doubts as to the propriety
of granting the motion in favor of plaintiff. Accordingly, we apply this well-
settled rule of evidence... (at 125-126)

Plaintiffs anticipate that defendant will object to their expert’s declaration as lacking
foundation or as a “naked conduit for hearsay,” based upon the decision in Andrews v. Foster

Wheeler (2006) 138 Cal.App.4th 96. However, as stated above, this Court lacks authority to

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exclude the opinions contained in these declarations based upon an objection that these
opinions supposedly lack an adequate foundation. Such objections go to the “weight” of the
expert’s opinions and not to their “admissibility.” California Evidence Code § 351 states that,
“except as otherwise provided by statute, all relevant evidence is admissible.” The Comment
from the Law Revision Commission explains that “Section 351 abolishes all limitations on the
admissibility of relevant evidence except those that are based on a statute, including a
Constitutional provision,” Both the express language and the legislative history of California
Evidence Code § 351 preclude this Court from excluding relevant evidence except when a
statute specifically authorizes such exclusion. Since no provision of the Evidence Code
authorizes the exclusion of relevant expert testimony for lack of an adequate foundation,
California trial courts have no authority to exclude expert testimony on that basis. See also
Kaplan v. Superior Court (1971) 15 Cal.App.3d 785; Ruiz v. Minnesota Mining &
Manufacturing Co. (1971) 15 Cal App.3d 462, 464-465, 467-468; Allen v. Superior Court
(1984) 151 Cal_App.3d 447, 451; People v. Guntert (1981) 126 Cal.App.3d Supp. 1, 9.

Evidence Code section 351 clearly limits a trial judge’s ability to exclude expert
testimony. Once a declarant is recognized as an expert, whether his or her opinions have
sufficient “foundation” is a question of weight, not admissibility, and must be determined by a
jury.

Plaintiffs’ expert declaration would lack “foundation” if it asserted that plaintiffs
disease was caused by, for example, exposure to asbestos-containing fireproofing when there
was no proof that plaintiff had ever been around any kind of fireproofing. (See, Dee v. PCS
Property Management, Inc, (2009) 174 Cal. App.4th 390, 398: “Because there was no
admissible testimony Dee suffered from brain damage, the court found inadmissible Gutierrez’s
proposed testimony that Dee suffered from brain damage caused by exposure to mold.”) Here,
plaintiffs have established exposure to the materials at issue, and plaintiffs’ expert can properly
draw upon what he knows about those materials to conclude that the materials contained
asbestos.

dif

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Likewise, in Buckwalter v. Airline Training Center (1982) 134 Cal. App.3d 547, 553-

554, the Court held that an accident reconstruction expert should have been allowed to rely
upon the training records of the deceased pilots and stated:

The reasonableness of an expert's reliance is a question of degree, and may well
vary with the circumstances. Where, as here, there is little or no direct evidence
upon which the expert can base an opinion, the expert may have to turn to forms
of circumstantial evidence on which he might not otherwise rely. In such
circumstances, the necessity for the information dictates that courts accord to
experts somewhat greater latitude in sources of information than might
otherwise be the case. (emphasis added)

In accord is Cooper v. Board of Medical Examiners (1975) 49 Cal-App.3d 931, 945, where the

Court held that determining the qualifications of an expert and the degree of his knowledge is
a matter affecting the weight of his testimony, not its admissibility. See, also, People v.
Stuller 1970) 10 Cal.App.3d 582, 597.

In Bell v. Mason (2011) 194 Cal.App.4th 1102, the trial court excluded the testimony of
a defense expert witness who had reviewed the plaintiff's deposition on the grounds that the
witness had not personally examined the plaintiff and thus the defense had laid inadequate
foundation. The appellate court said point-blank, “Exclusion of Black’s opinion regarding
mental retardation was erroneous; the fact Black did not personally examine Bell did not affect
the admissibility of the evidence but merely went to the weight of his testimony.” (Id. at 1112.)
The court quoted the People v. Bassett (1968) 69 Cal.2d 122 case to point out the difference
between admissibility and weight:

In Bassett, the issue presented was whether the testimony of two prosecution

experts, neither of whom had examined the defendant in person and who

testified on the basis of a lengthy hypothetical question posed by the prosecutor

(id. at p. 140), could “be deemed ‘substantial’ evidence to support the implied

finding of defendant’s mental capacity on the guilt phase of [the] trial” (id, at p.

146). Although said expert testimony did not constitute substantial evidence,

Bassett added: “We do not imply, of course, that the testimony in question was

inadmissible. Assuming the necessary minimum acquaintance with the case in

which he is called to testify, ‘the extent of an expert's knowledge goes to the

weight of his testimony, rather than to its admissibility’ (Estate of Schluttig

(1950) 36 Cal.2d 416, 424).”
(Bell, supra, at 1112-1113, emphasis in original.)
Provided that the expert has relied on evidence “that is of a type that reasonably may be relied

upon by an expert in forming an opinion upon the subject to which his testimony relates”

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(Evidence Code Section 801, gid. in Bell, supra, at 1112), the testimony is admissible. Whether
or not it is “substantial” is a matter for the trier of fact, not a matter of law to be determined at
summary judgment.

Defendants frequently accuse plaintiff's experts of offering inadmissible hearsay
because they refer to published articles and reports. This very issue was discussed by the Court

of Appeal in Miranda v. Bomel Construction Co., Inc. (2010) 187 Cal.App.4th 1326:

Miranda asserts the court improperly overruled his objection to portions of Kollmeyer’s
declaration. Specifically, he objected to Kollmeyer’s statements regarding the airborne nature of
the fungal spores and given the ability to travel in the wind it is difficult to prove the source of
infection absent some kind of scientific data. Kollmeyer referred to several science-based articles
in making these statements, primarily articles published by federal agencies and written by
medical experts. Miranda did not challenge the sufficiency of the USGS report, or object to ils
inclusion, or challenge the facts as unreliable. Rather, he argues Kollmeyer’s declaration was
“mere regurgitation of the scientific journal” making his opinion “inadmissible hearsay.”
However, he cites to no legal authority to support his claim experts cannot refer to scientific facts
contained in scientific articles or reports. (Id. at 1343.)

Plaintiffs anticipate that defendant will try to undermine the declaration of plaintiffs’ expert by
calling it hearsay. This argument should fail for the same reasons Miranda’s did. There is no
case law stating that an expert cannot use scientific facts in forming an opinion and
subsequently allude to those facts. Plaintiffs’ expert is relying on the combination of a wealth
of published literature about asbestos and asbestos-containing products and his own education
and practice with asbestos-containing products.

The Declaration of Charles Ay is not speculative and is admissible. Plaintiffs’ evidence
that Mr. ROSS was exposed to asbestos fibers attributable to defendant is based in part upon the
declaration of plaintiffs’ expert Charles Ay. Because, as the Court and defendant are aware,
declarations from plaintiffs’ experts have been viewed unfavorably in several appellate cases,
plaintiffs here address those cases and the relevant concerns in anticipation of defendant
objections. In all three, there was an underlying factual issue which the declaration could not
overcome that has nothing to do with the expert’s opinion about the asbestos contained in the
product type.

McGonnell y. Kaiser Gypsum (2002) 98 Cal. App.4th 1098: The McGonnell court

summarized the problems with plaintiffs’ evidence generally by saying, “Viewed in its best

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light, plaintiffs’ evidence suggests that Kaiser Cement products might have been used once on a
construction project at California Pacific. There is no evidence, however, that these products
contained asbestos at the time of their use.” (Id. at 1105.) Referring specifically to an expert
declaration, the court wrote, “In the first declaration, the expert opines that McGonnell more
likely than not was exposed to significant levels of airborne asbestos while working