Motion,Ex Parte: ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS

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                                BISHOP | BARRY | DRATH
ATPROFESSIONAL CORPORATION

2000 Powell Street, Suite 1425, Emeryville, Califomia 94608

Tel. No. (510) 596-0888 Facsimile (510) 596-0899

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BISHOP | BARRY | DRATH
MARY MARGARET RYAN, SBN 127828

CAROL L. HEALEY, SBN 61461 ELECTRONICALLY

2000 Powell Street, Suite 1425 FILED
Emeryville, California 94608 Superior Court of California,
Telephone: (510) 596-0888 County of San Francisco

imile: FEB 27 2013
Facsimile: (510) 596-0899 Clerk of the Court
BY: EDNALEEN JAVIER

Attorneys for Defendant Deputy Clerk

FOLEY ELECTRIC, INC.

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO — UNLIMITED JURISDICTION

ROBERT ROSS and JEAN ROSS, Case No. CGC 10 -275731
SEPARATE STATEMENT OF

a. UNDISPUTED MATERIAL FACTS IN
Plaintiffs, SUPPORT OF DEFENDANT FOLEY
ELECTRIC, INC.’S MOTION FOR

VS. SUMMARY JUDGMENT

Date: May 9, 2013
Time: 9:30am
C. C. MOORE & CO. ENGINEERS, et al., Dept: 503

Judge: Hon. Teri L. Jackson

Defendants. Complaint Filed: December 17, 2010

3rd Amd. Complaint: May 8, 2012
Trial Date: June 10, 2013

_——!

Pursuant to Code of Civil Procedure section 437ce(b), Defendant Foley Electric, Inc.
hereby submits this Separate Statement of Undisputed Material Facts in support of its Motion for

Summary Judgment in the above-entitled action:

Issue: FOLEY ELECTRIC, INC. IS ENTITLED TO SUMMARY JUDGMENT
BECAUSE PLAINTIFF HAS SUED THE WRONG “FOLEY” ENTITY AND THIS
PARTY HAD NOTHING TO DO WITH THE FACILITIES, PRODUCTS OR SERVICES

| SUBJECT OF PLAINTIFF’S COMPLAINT.

SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF FOLEY ELECTRIC,
INC.’S MOTION FOR SUMMARY JUDGMENTBISHOP | BARRY | DRATH
‘A PROFESSIONAL CORPORATION
2000 Powell Street, Suite 1425, Emeryville, California 94608

Tel. No. (510) 596-0888 Facsimile (510) 596-0899

UNDISPUTED MATERIAL FACT AND

SUPPORTING EVIDENCE

1. Plaintiffs filed a Complaint for Damages

against “Foley Electric Co.” and others in this
court on December 17, 2010.

Supporting Evidence: Moving party requests
that the Court take Judicial Notice of Plaintiffs’
Complaint for Damages on file herein. The
main body of the Complaint and those pages
from the Exhibits referencing “Foley Electric”
are attached as Exhibit A to the APPENDIX
OF EXHIBITS.

PLAINTIFFS’ RESPONSE AND

SUPPORTING EVIDENCE

2. Plaintiffs filed a First Amended Complaint
for Damages against “Foley Electric Co.” and
others on March 14, 2011.

Supporting Evidence: Moving party requests
that the Court take Judicial Notice of Plaintiffs’

First Amended Complaint on file herein. The
main body of the First Amended Complaint and
those pages from the Exhibits referencing
“Foley Electric” are attached as Exhibit B to
the APPENDIX OF EXHIBITS.

3. Plaintiffs filed a Second Amended Complaint
for Damages against “Foley Electric Co.” and
others on May 16, 2011.

Supporting Evidence: Moving party requests
that the Court take Judicial Notice of Plaintiffs’
Second Amended Complaint on file herein.
The main body of the Second Amended
Complaint and those pages from the Exhibits
referencing “Foley Electric” are attached as
Exhibit C to the APPENDIX OF EXHIBITS.

“4. Plaintiffs filed a Third Amended Complaint

Jor Damages against Foley Electric Co. and
others on May 11, 2012.

Supporting Evidence: Moving Party requests
that the Court take Judicial Notice of Plaintiff's
Third Amended Complaint on file herein. The
main body of the Complaint and those pages
from the Exhibits referencing “Foley Electric” _

2

SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF FOLEY ELECTRIC,
INC.’S MOTION FOR SUMMARY JUDGMENTBISHOP | BARRY | DRATH
APROFESSIONAL CORPORATION

California 94608
596-0899

Tel. No. (510) 596-0888 Facsim

2000 Powell Street, Suite 1425, Emery:

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are aitached as Exhibit D to the APPENDIX |

OF EXHIBITS.

Sin Exhibit C to the Third Amended F

Complaint, labeled Contractor Defendants,
“Foley Electric” appears in connection with
Union Oil in Rodeo, California at various times
between 1960-1966 and 1973-1977, and with
Phillips Petroleum Company in Avon at
various times in 1973-1977.

Supporting Evidence: Moving party requests
that the Court take Judicial Notice of Exhibit C
contained in Plaintiffs Third Amended
Complaint on file herein. Those pages of
Exhibit C referencing “Foley Electric” are
attached as Exhibit E to the APPENDIX OF
EXHIBITS.

6. Foley Electric, Inc. filed its Answer to the
Third Amended Complaint on June 18, 2012.

Supporting Evidence: Moving party requests
that the Court take Judicial Notice of Foley

Electric, Inc.’s Answer to Third Amended
Complaint on file herein, attached as Exhibit F
to the APPENDIX OF EXHIBITS,

7. This moving party Foley Electric, Inc.
commenced doing business on or near the time
of its incorporation in California, March 29,
1977.

Supporting Evidence: Moving party requests
that the Court take Judicial Notice of the

Corporation Index records maintained by the
Secretary of State reflecting the date of
incorporation of Foley Electric, Inc. as March
29, 1977, copy of printout from website
attached as Exhibit G to the APPENDIX OF
EXHIBITS. Also: Declaration of John
Philpott, Paragraph 2.

8. Atall times since its incorporation in 1977,
Foley Electric, Inc. has had its principal place
of business in the San Carlos/Redwood City
area of California.

3

SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF FOLEY ELECTRIC,

INC.’S MOTION FOR SUMMARY JUDGMENTBISHOP | BARRY | DRATH
A PROFESSIONAL CORPORATION

10} 596-0899

le, California 94608

2000 Powell Street, Suite 1425, Emc
Tel. No. (510) 596-0888 Facsi

Supporting Evidence: Declaration of John

Philpott, Paragraph 5.

9. At all times since its incorporation in 1977,
Foley Electric, Inc. has been in the business of
contracting to provide electrical services in the
Bay Area to residences and business entities,

Supporting Evidence: Declaration of John
Philpott, Paragraph 6.

10. Foley Electric, Inc. is and has been at all
relevant times since its incorporation a
California corporation doing business as a State
licensed electrical contractor.

Supporting Evidence: Declaration of John
Philpott, Paragraph 3.

11. Foley Electric, Inc. has never used any
other “Foley” name.

Supporting Evidence: Declaration of John
Philpott, Paragraph 9.

12. Foley Electric, Inc, has never used the
name “Foley-PMI”, “O.K. Foley Electric”, or
“W.P. Foley.”

Supporting Evidence: Declaration of John
Philpott, Paragraph 9.

13. Foley Electric, Inc. has not assumed the
assets or liabilities of any other company at any
time.

Supporting Evidence: Declaration of John
Philpott, Paragraph 4.

14. Foley Electric, Inc. is not a successor in
interest to any company using the name
“Foley”.

Supporting Evidence: Declaration of John
Philpott, Paragraph 4.

4

~~SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF FOLEY ELECTRIC,

INC.’S MOTION FOR SUMMARY JUDGMENT1 |{45, Plaintiffs’ verified Answers to Standard

Asbestos Case Interrogatories state that while

2 plaintiff was employed by Western Asbestos

3 || working at Pacific Bell Telephone in San
Francisco as an insulator from 1961 to 1965, he

4 || worked “in proximity to FOLEY ELECTRIC

electricians who were removing and disturbing

5 || existing asbestos-containing insulation...”,

which work “created visible dust which

plaintiff inhaled.”

Supporting Evidence: Answers to Standard

| Asbestos Case Interrogatories, Set Two, p. 18,
line 25-page 19, line 21 (APPENDIX Exh. H);
Supplemental / Amended Answers to Standard
Asbestos Case Interrogatories served October
25 2012, p. 10, lines 1-10 (APPENDIX Exh. D;
: Declaration of Mary Margaret Ryan,
Paragraphs 5 and 6; Declaration of Carol L.
Healey, Paragraph 7.' See also:
Supplemental/Amended Answers to Standard
Asbestos Case Interrogatories served June 1,
2012 and Supplemental/Amended Answers to
Standard Asbestos Case Interrogatories served
September 16, 2011.

BISHOP | BARRY | DRATH

16. Plaintiffs’ verified Answers to Standard
Asbestos Case interrogatories state that
plaintiff worked around a mechanical
contractor, Foley-PMI, alleged to be at an
Aerojet-General jobsite in Rancho Cordova,

19 ||| California April 1972-September 1973 (off and

on 3 weeks).
20
1 Supporting Evidence: Answers to Standard

Asbestos Case Interrogatories, Set Two, p. 149,
29 || lines 4-17 (APPENDIX Exh. H); Declaration of
Mary Margaret Ryan, Paragraph 5.

17. Plaintiffs’ verified Answers to Standard
24 |) Asbestos Case Interrogatories state that
plaintiff worked around Foley-PM1, Inc.
alleged to be at an Phillips Petroleum

26 || Company/Lyon Oil. Company jobsite in Avon,

27 | | These Answers are 278 pages long with attached Exhibit B, 69 pages, plus 6 pages of Ship List and 3
28 pages of General Comments and Designations. For the convenience of the Court, we are providing only
those pages that are pertinent to this motion (that reference Foley Electric) in the Appendix.
5

SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF FOLEY ELECTRIC,
INC.’S MOTION FOR SUMMARY JUDGMENTBISHOP | BARRY | DRATH

A PROFESSIONAL CORPORATION

2000 Powell Street, Suite 1425, Emeryville, California 94608

Tel. No. (510) 596-0888 Facsimile (510) 596-0899

over various dates in 1973, 1974-1976 and
October 1976-February 1977 (off and on 1
month).

Supporting Evidence: Answers to Standard
Asbestos Case Interrogatories, Set Two, p. 162,
lines 13-23 (APPENDIX Exh. H); Declaration
of Mary Margaret Ryan, Paragraph 5.

18. Exhibit B to Plaintiffs’ verified Answers to
Standard Asbestos Case Interrogatories is a list
of contractors and jobsites where each
contractor was allegedly working. This list
puts “Foley Electric Co.” at Phillips Petroleum
between 1/1/68 and 12/31/68, and at Union
Oil/Unocal between 1/1/73 and 12/31/74.

Supporting Evidence: Exhibit B to Answers to
Standard Asbestos Case Interrogatories, Set
Two (APPENDIX Exh. J); Declaration of Mary
Margaret Ryan, Paragraph 7.

19. Foley Electric, Inc. has never done work at
any refinery.

Supporting Evidence: Declaration of John
Philpott, Paragraph 7.

20. Moving party served Request for
Admissions on plaintiff Robert Ross on March
17, 2011.

Supporting Evidence: Request for Admissions
(APPENDIX Exh, K); Declaration of Mary
Margaret Ryan, Paragraph 8.

21. Plaintiffs” served Responses to Request for
Admissions on April 18, 2011, objecting to and
denying all Requests.

Supporting Evidence: Plaintiffs’ Response to
Request for Admissions (APPENDIX Exh. L);

9.

Declaration of Mary Margaret Ryan, Paragraph

? Although each of Foley’s special discovery requests were directed only to the injured worker

Robert Ross, the Responses were made by both plaintiffs.
6

SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF FOLEY ELECTRIC,

INC.’S MOTION FOR SUMMARY JUDGMENTBISHOP | BARRY | DRATH

Tel. No. (510) 596-0888. Facs

22. Moving party served Form Interrogatories
to Plaintiff Robert Ross on March 17, 2012,
consisting solely of Interrogatory No. 17.1
relating to facts, witnesses and documents
supporting plaintiff's denials of Foley Electric,
Inc.’s Requests for Admission.

Supporting Evidence: Form Interrogatories Set
One (APPENDIX Exh. M); Declaration of
Mary Margaret Ryan, Paragraph 10.

33, Plaintiffs served Responses to Foley
Electric Inc.’s Form Interrogatories on April
18, 2011.

Supporting Evidence: Plaintiffs’ Response to
Defendant Foley Electric Inc.’s Form
Interrogatorics, Sct One (APPENDIX Exh. N);
Declaration of Mary Margaret Ryan, Paragraph
ql.

24, Plaintiffs’ Responses to Foley’s Form
Interrogatory No. 17.1 stated that plaintiff
worked at job sites where Foley was present
“gs electrical contractors” and in close
proximity to Foley Electric employees
disturbing asbestos materials at Pacific Bell
Telephone, San Francisco, 3 months between
1961 and 1965.

Supporting Evidence: Plaintiff's Response to
Defendant Foley Electric, Inc.’s Form
Interrogatories, Set One, page 2, lines 10-17
(APPENDIX Exh. N); letter with Verification
of responses (APPENDIX Exh, 0); Declaration
of Mary Margaret Ryan, Paragraphs 11 and 12.

28, Foley Electric, Inc. has never done work on
a Pacific Telephone building in San Francisco.

Tr

Supporting Evidence: Declaration of John
Philpott, Paragraph 8.

26. Foley Electric, Inc. served its Request for
Production of Documents on plaintiff's counsel
on March 17, 2011, seeking specific documents
supporting plaintiff's contentions that Robert

7

SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF FOLEY ELECTRIC,

INC.’S MOTION FOR SUMMARY JUDGMENTBISHOP | BARRY | DRATH

A PROFESSIONAL CORPORA’

2000 Powell Street, Suite 1425, Em

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Ross was exposed to asbestos by Foley
Electric.

Supporting Evidence: Foley Electric, Inc.’s
Request for Production of Documents to
Plaintiffs (APPENDIX Exh. P); Declaration of
Mary Margaret Ryan, Paragraph 13.

27. Plaintiffs’ Response to Defendant Foley
Electric, Inc.’s Request for Production of
Documents, Set One, served April 18, 2011,
provided no mention of Foley Electric, Inc. in
connection with boilerplate and generic
responses, nor did plaintiffs produce any
documents created by or about Foley Electric,
Ine.

Supporting Evidence: Plaintiffs’ Response to
Defendant Foley Electric, Inc.’s Request for
Production of Documents, Set One
(APPENDIX Exh. Q); Declaration of Mary
Margaret Ryan, Paragraph 14.

28. Foley Electric, Inc. served Special
Interrogatories to Plaintiffs, Set One, on
plaintiffs’ counsel on March 16, 2011.

Supporting Evidence: Defendant Foley
Electric, Inc.’s Special Interrogatories to
Plaintiff Robert Ross, Set One (APPENDIX
Exh. R); Declaration of Mary Margaret Ryan,
Paragraph 15.

29. Foley Electric’s Special Interrogatory No.
2 states: “Do YOU contend that YOU were
exposed to asbestos from any product
manufactured, supplied, distributed, or sold by
FEI [Foley Electric, Inc.|?

Supporting Evidence; Defendant Foley
Electric, Inc.’s Special Interrogatories to
Plaintiff Robert Ross, Set One (APPENDIX
Exh. R); Declaration of Mary Margaret Ryan,

Paragraph 15.
30. Plaintiff's Response to Defendant Foley ™
Electric, Inc.’s Special Interrogatory No. 2

8
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF FOLEY ELECTRIC,
INC.’S MOTION FOR SUMMARY JUDGMENT1 || indicated that plaintiff does contend he was

exposed to asbestos from a product manufac-

2 tured, supplied or sold by Foley Electric.

3 || Supporting Evidence: Plaintiff's Response to

Defendant Foley Electric, Inc.’s Special

4 || Interrogatory No. 2 (APPENDIX Exh. 8);

5 Declaration of Mary Margaret Ryan, Paragraph
16.

6 31, Special Interrogatory No. 3 states: If

7 || YOUR answer to Interrogatory No. 2 above is
affirmative, please state each fact supporting
8 || YOUR contention that YOU were exposed to
asbestos from a product manufactured,

9 || supplied, distributed or sold by FEL”

Supporting Evidence: Defendant Foley

11 || Electric, Inc.’s Special Interrogatories to
Plaintiff Robert Ross, Set One (APPENDIX
12 |} Exh. R); Declaration of Mary Margaret Ryan,
Paragraph 15.

le, California 94608

32. Plaintiffs Response to Foley’s Special
Interrogatory No. 3 that while plaintiff was

15 || employed by Western Asbestos working at
Pacific Bell Telephone in San Francisco as an
16 |] insulator from 1961 to 1965 for three months,
he worked “in close proximity to FEI
employees who were performing various

1g | duties, including ... removing and disturbing
existing asbestos-containing insulation, joint
19 || compound, drywalling, fireproofing and ceiling
materials during installation, remodel and

20 | repair work ....” “Plaintiff’s husband worked
in proximity to FOLEY ELECTRIC
electricians who were removing and disturbing
29 || existing asbestos-containing insulation...”,
which work “created visible dust which

23 || plaintiff inhaled.”

BISHOP | BARRY | DRATH
A PROFESSIONAL CORPORATION

Tel. No. (510) 596-0888 Facsimile (510) 596-0899
z

2000 Powell Street, Suite 1425, Emery

24 || Supporting Evidence: Plaintiffs’ Response to
Defendant Foley Electric, Inc.’s Special
Interrogatories, Set One, p. 2, line 19 —p. 3,
26 || line 3 (APPENDIX, Exh 8); Declaration of
Mary Margaret Ryan, Paragraph 16,

9

SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF FOLEY ELECTRIC,
INC.’S MOTION FOR SUMMARY JUDGMENTBISHOP | BARRY | DRATH
‘A PROFESSIONAL CORPORATION:

2000 Powell Street, Suite 1425, Emeryville, California 94608,

Tel, No. (510) 596-0888 Facsimile (510) 596-0899

33, The deposition of plaintiff Robert Ross
was taken over several sessions in July and
August of 2011 and in September of 2012.

Supporting Evidence: Declaration of Carol L.
Healey, Paragraph 5.

34, In all of the sessions of his deposition,
plaintiff recalled Foley Electric solely in
connection with a Pacific Telephone jobsite in
1961 to 1965.

Supporting Evidence: Declaration of Mary
Margaret Ryan, Paragraph 18; Declaration of
Carol L, Healey, Paragraph 6, APPENDIX
Exh. T, pages from plaintiff Robert Ross’s
deposition referencing “Foley Electric” and
deposition exhibits including reference to
“Foley Electric.”

"35. Plaintiff testified in deposition on August
10, 2011 that he did not recall seeing Foley
Electric on any jobsite after 1974.

Supporting Evidence: Deposition of plaintiff
Robert Ross, page 1333 line 21 to 1334 line 4
(APPENDIX Exh. T-1); Declaration of Carol
L. Healey, Paragraph 5.

36. Plaintiff testified in deposition on August
10, 2011 that he had no reason to believe that
OK. Foley Electric, Foley PMI or W. P. Foley
were composed of the same persons as
defendant Foley Electric, Inc.

Supporting Evidence: Deposition of plaintiff
Robert Ross, page 1332 lines 13-17
(APPENDIX Exh, T-2); Declaration of Carol
L. Healey, Paragraph 5.

L _

Dated: February 21, 2013.

10

BISHOP 4 BARRY | DRATH

By.

CAROL L. HEALEY ST
Attorneys for Defendant Foley Elettric, Inc

SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF FOLEY ELECTRIC,
INC.’S MOTION FOR SUMMARY JUDGMENT