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

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                                1] HAAS & NAJARIAN, LLP

58 Maiden Lane, Second Floor |
San Francisco, CA 94108
Telephone: '415.788.6330._

JAMES N. SINUNU, SBN-62802 -

4| JUNIPER BACON, SBN 256687°

SINUNU-BRUNI LLP.

333 Pine Street, Suite 400.

San Francisco, CA 94104

Telephone: 415.362.9700

Facsimile: 415.362.9707...

{| jsinunu@sinunubruni.com
jbacon@sinunubruni.com

Attorneys for Defendant
MCCLURE ELECTRIC, INC...

||ROBERT ROSS and JEAN ROSS, —

Plaintiffs,

Cc. MOORE &CO. ENGINEERS; >
Defendants as Reflected on Exhibit 1

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

PATRICIA G. ROSENBERG, SBN 154820

° SUPERIOR COURT OF THE STATE OF CALIFORNIA ° :
8 cry AND COUNTY: OF SAN FRANCISCO-UNLIMITED JURISDICTION |

. 4
|

: ~ 6
. MCCLURE. BLECTRIC, INC.'S MEMORANDUM. OFPONTS AND AUTHORITIES ©
: : oN SUPPORT ‘OF ITs MOTION FOR SUMMARY JUDGMENT,

= Complaint Filed: ‘December 17, 2010
“Trial D Date: June 10, 2013

ELECTRONICAL
FILED

+ “Superior Court of Califorpia,

County ef San Francis lo.

_ FEB 28-201

Clerk of the Cour]
BY. CAROL BALISTRERE

Députy plerk.

Case No.: CGC-10-275731 a

“DEFENDANT MCCLURE. ELECTRIC, :
INC.’S MEMORANDUM OF POINTS:
AND AUTHORITIES IN SUPPORT. OF
ITS MOTION:FOR SUMMARY
JUDGMENT OR, IN THE
ALTERNATIVE, SUMMARY
ADJUDICATION

Date: - May 9, 2013 -

Time: 9:30 a.m. -
Dept: 503. *

Ju dge: “Hon. Temi L. Jacksoneo

- TABLE OF CONTENTS

1... INTRODUCTION
I. STATEMENT OF FACTS
© A. COMPLAINT... cscsensntnnngenestseesese recesses

B. PLAINTIFFS RESPONSES To MCCLURE’S SPECIAL INTERROGATORIES
. AND REQUEST ‘FOR PRODUCTION OF DOCUMENTS..

: C PLAINT TFF’S DEPOSITION TESTIMONY

Cm AW Rw on,

o D. DECLARATION OF CARY HEDMAN: CHIEF ENGINEER AT THE MILLS. A
oo... BUILDING,
Ti, ARGUMENT ....

“A. LEGAL STANDARD...

be
N — Oo.

oB. PLAINTIFF CANNOT PROVE EXPOSURE, A NECESSARY ELEMENT TO EACH
-_ CAUSE OF ACTION ALLEGED AGAIN: ST ‘THIS DEFENDANT.

“pa
we

1. : Plaintiff's Deposition Testimony | Fails to Establish Asbestos Exposure from ‘Any ‘Act or
2 Failure to Act by. MCCLURE ELECTRIC...

a
bp

15
. Oe Plaintiff's Responses to Written Discovery Fail to Present Any Facts in Support
16 of His Allegations...
‘A7]) -. C.. PLAINTIFF CANNOT SHOW.THAT ASBESTOS-CONTAINING MATERIALS
. 18 -HANDLED BY MCCLURE ELECTRIC WERE A SUBSTANTIAL: FACOTR IN ©
CAUSING OR CONTRIBUTING TO. PLAINTIFF'S INJURIES...
“19 °
DR EACH OF PLAINTIFF” s CAUSES OF ACTION. MUST FAIL BECAUSE PLAINTIFF ,
20. CANNOT. PROVE THAT DEFENDANT EXPOSED PLAINTIFF. TO ASBESTOS
1 . L : Plaintif?'s Cause of Action of Negligence fails aga matter of law, as Plaintiffs have :
- 22 Failed to Raise a Triable Issue of Material Fact.with Respect to Causation, a :
ny “2 Necessary Element. ..
“23
me 2. Plaintiff's s Cause of ‘Action for. Strict Products Liability Fails as a Matter
24 ~ of Law, as Plaintiffs have Failed to Raise a Triable Issue of Material Fact
: with Respect to Causation, a a Necessary Element...
25 .
: : Plaintiff. Jean Ross’ Ss claim for Loss of Consortium Fails as‘a Matter
26 ‘of Law, as Plaintiffs have Failed to Raise a Triable Issue.of Material Fact
oy with Respect to. Causation, a | Necessary Element...

“4aee Plaintifis’ Cause of Action for Premises Owner/Contractor Liability Fails =.
: as a a Matter of Law, as Plaintiffs have Failed to ) Raise a Triable Issue of Material Fact
i

DEFENDANT MCCLURE HLECTRIC, INC. ’S. MEMORANDUM OF POINTS AND. ‘AUTHORITIES IN SUPPORT: OF
ITs MOTION FOR SUMMARY TUDGMENT 2Oe NW AW Reo NM oR

10

: with Respect to Causation, a Necessary Element.

LW. CONCLUSION.

DEFENDANT MCCLURE FLECTRIC INC.’S MEMORANDUM OF POINTS AND AUTHORITIES oN SUPPORT OF
a : TES MOTION FOR SUMMARY. JUDGMENT._

OO NON A ot

RN ee a
RS NO WOON AA RO NB eS

: Truman y. Vargas (1969)

. Leslie G. v.Perry & Assoc. (1996)

: Ann M.-¥, Pacific Plaza a Shopping Center 1983)

: “TABLE OF AUTHORITIES
Cases. o oe oe : a “pasets
Aguilar v, Atlantic Richfield Co, (2001) - Sa : . : meta)

25 Cal.4th 826...

Scheiding v. Dinwiddie Construction Co.. (1999)
69 Cal. App. 4th 64.

Union Bank v. Superior Court (098)
31.Cal.App.4th 573

Lopez v. University Partners en
54.Cal.App- 4th 1117

Rutherford v. Owens-Illinois, Ine, (1997)
: 16 Cal.4" 953...

MeGonnell v. Kaiser ‘ypu Co. (2002) -
98 Cal-App.4th 1098.

Dumin v. Owens Corning Fiberglass Corp, (1994)...
28 Cal_App.4th 650,

Lineweaver'v. Plant Insulation Co. 295)
31 Cal. Apps 4th 1409

8, 9, 13, 16

275 Cal.App. 2d 976

Casey v. Perini Corporation (2012) ©
ce 206 Cal-App 4th 1222...

Andrews v. Foster Wheeler LLC (2006)
138 Cal.App.4th 96....

Whitmire v. Ingersoll R -Rand Co, (2010)

“184 Cal.App.4” 1078

43 Cal. App.4th 472...

Saelzier 1 v. Advanced Group (2001).
25 Cal.4th 763

6 Cal-4th 666 ..

Greenman v. Yuba Power Products, Inc. (1969)
“59 Cal. 2d STs soe

DEFENDANT MCCLURE ELECTRIC. INC.’S MEMORANDUM oF POINTS AND. AUTHORITIES IN SUPPORT ‘OF.
. . ITS MOTION, FOR SUMMARY. JUDGMENT LeOO NN a te

se
RUA BG Ne eS

42

: Anderson “Owens- Corning Fibsrelas Corp. (1981) oh

a4 DEFENDANT MCCLURE ELECTRIC, INC. § MEMORANDUM OF POINTS AND. AUTHORITIES IN SUPPORT OF

53 Cal.3d 987... . sevscteseneanes 15

Sindell y. "Abbott Laboratories.(1 980)
26 Cal.3d 588

Smith v ACES, Inc. (1994)
: 31 Cal. APP. 4h The

California Evidence Code § 4370. :
California Evidence Code § A3TE(A) ros
California Evidence Code § 4370(P)2).
California Evidence Code § 3 8000.

iv

ITS. MOTION FOR SUMMARY JUDGMENT.25,

‘MEMORANDUM OF POINTS AND AUTHORITIES -

’ Defendant MCCLURE ELECTRIC, INC. (hereinafter “MCCLURE ELECTRIC” or
“Defendant”) respectfully submits. the following points and authorities in support of its
Motion ‘for ‘Summary Judgment as to. all of Plaintiff's causes “of action or, altematively,
Summary Adjudication, pursuant to section 437¢ of the Code of Civil Procedure in the
above-captioned matter. oo : wa
I. INTRODUCTION.

> Plaintiffs Robert Ross and Jean Ross (hereinafter “ “Plaintiff” and/or "Plaintiffs") filed :

dla Complaint for personal i injury for Robert Ross's asbestos-related disease on December 17,

2010, and a Second Amended Complaint on May .16, 2011; MCCLURE ELECTRIC filed an
answer to Plaintifis’: Second Amended ‘Complaint, on December 28, 2011. Prior to the :
Present action ‘based on Robert Ross's colon cancer, plaintiffs ‘previously filed an action
based on Robert Ross’ 's asbestosis and pleural disease, to which MCCLURE ELECTRIC was
not a party (SFSC. Case No. CGC-07- -274099). Plaintiffs only claim that Robert Ross worked -
near MCCLURE ELECTRIC at. one job location: the Mills Building in San Francisco,

California, fora total of ten (10) days between 1967 and 1972.- However, despite years of - —

discovery, ‘plaintiffs -have - failed -to produce any. evidence that MCCLURE ELECTRIC
exposed Robert Ross to asbestos or is in any. way responsible for his: ‘colon cancer. ~

The facts of this matter are quite simple. Plaintiff was deposed in great detail He
worked for years as an insulator at numerous Jobsites, however, plaintfis shave ‘failed to
present any evidence ‘that he was exposed. to any asbestos or asbestos-containing material asa
result of any act, or failure to act, by MCCLURE BLECTRIC or its employees.

~ MCCLURE ELECTRIC respectfully requests this Court to “grant its motion ‘for
Summary Judgment ‘on the grounds that there are no material facts at issue which would -
support Plaintiff's. claims against ‘MCCLURE 'BLECTRIC, “Alternatively, MCCLURE

. ELECTRIC requests that the Court grant summary adjudication as to those ¢ causes of action -

that have no merit. . :
i. STATEMENT OF FACTS
A. COMPLAINT. me 5 *
_ Plaintis Robert Ross and Jean Ross filed a Complain for persona injury for Robert af
1 :

MOCLURE ELECTRIC, INC.'S MEMORANDUM. OFPOWNTS AND ‘AUTHORS .
ORS IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT :Complaint on December 28, 2011: (Defendant’s Separate Statement of Undisputed Material
Facts (hereinafter “UMF’)1 No. 1. )° :

. (UME No. 2)

sites. Plaintiff claims that he unloaded or x delivered thermal insulation and insulating cement.
(UMF? No. ayo
B. PLAINTIFFS? RESPONSES To MCCLURE ELECT! RIC'S SPECIAL.
. INTERROGATORIES AND REQUESTS FOR PRODUCTION OF.
: DOCUMENTS : :

were served on January 3 2013. (UME No. 6).

ELECTRIC electricians exposed to him asbestos by: disturbing previously sprayed | asbesto:

: between 1967 and 1972. (UME No. 8.)

oy

Ross's asbestos-related disease on December 17, 2010, anda Second Amended ‘Complaint on
May: 16, 2011; MCCLURE ELECTRIC filed an answer to Plaintifis’ Second Amended :

As against MCCLURE ELECTRIC, Plaintiff asserts the following causes of action: . :
Negligence, Strict Liability, Loss of Consortium, and Premises Owner / Contractor Liability. 4 &

: Generally plaintiff claims that he was exposed to asbestos asa result of his work a as.
an. insulator from 1959. until 1993, at numerous commercial: and industrial ‘locations, :
primarily in Norther | California. (UMF: No. 3. ) Prior to his work as an insulator, plaintiff :
claims that between February 1959 and January 1960, he: was ‘exposed to asbestos as a result =
of his work asa “warehouseman ata warehouse where he unloaded boxears of, asbestos-. of
containing products; ‘he also swept. floors and delivered asbestos-containing materials io job =

. MCCLURE: ELECTRIC ‘propounded “special: interrogatories. and requests “for
produetion of documents secking all facts, witnesses and documents in support of: Plaintiff’ :
claims against MCCLURE ELECTRIC. (UMF No. 5.) Plaintiff served amended responses -

4 to MCCLURE ELECTRIC's Special Discovery 0 on December 19, 2012; verifications to same ye

AS to MCCLURE ELECTRIC, Plaintiffs claim that that Robert Ross “was. exposed = :
asbestos as result of activities by MCCLURE ELECTRIC at only one job location: the Mills os

Building i in San Francisco, CA. (UMF No, 7. ). ‘Specifically, plaintiffs claim that MCCLURE . -

: containing overhead fireproofing while setting their Pipe and conduit at the N Mills Building : :

Several months after Plaintiffs deposition concluded, in response to: an mt : s ae -

HCCLRE RECT, INC'S MEMORANDUM OF POINTS AND ‘AUTHORITIES
. “IN, SUPPORT ort rs. MOTION, FOR SUMMARY JUDGMENT ~request for all witnesses in n suppor of his claims against MCCLURE E ELECTRIC, Plaintiffs
identified ‘only Robert and Jean Ross. (UMF No. 32.) Although asked, Plaintifts’ Responses .
to -MCCLURE ELECTRIC’s Special Interrogatories vand Requests ‘for Production. of :
Documents do not identify. any specific documents supporting Plaintiffs’ contention that he.
was exposed to asbestos by MCCLURE. ELECTRIC. (UMF No. 33.) vs :

As to the individual causes of action, MCCLURE ELECTRIC requested that Plaintiff
state all facts i in support of Plaintiffs’ Causes of ‘Action for Negligence, Strict ‘Liability,.
Premises. Ovwner/Contractor Liability, and Loss of: Consortium as against MCCLURE :
ELECTRIC; Plaintiffs’ Tesponses reiterate the information i in plaintiffs Tesponises to standard
asbestos interrogatories, - ‘followed by. over ten pages of generic documents, however, MS
plaintifis resent no admissible evidence which supports their claims. (UMF Nos. 43, 44, 45,
and 46.) “ oe : 2

of. ‘PLAINT: TFF’S. DEPOSITION TESTIMONY.

-Jean Ross stipulated that, she will not offer any product identification testimony as to- -

MCCLURE BLECTRIC or any other newly ‘served defendant. “(UME No. 31. Plaintiff :

we Robert Ross. testified that he worked for a total. of ten man- -days at ‘the: Mills Building :
: between 1967: and 1972, on a ‘total of three different jobs. (UME. No. 9) On each of the :

three different jobs, plaintiff ‘worked on ducts. (UMF No. 10.) Plaintiff testified that: his job
at the Mills Building was to insulate ‘pipe and duct for air conditioning and heating, however, =

he. could not recall ‘what kind of heating system was at the Mills Building. (UMF No. 11)...
a According to. plaintiff, the ducting he worked on at the Mills Building was forced a air heating, :

going to rooms to heat and cool the rooms. (UME No. 12) : - :
Pes Plaintiff d docs not recall what floors he worked on, how many f floors he worked on, or
what rooms he worked i in, ther than it owas. “inside” the building and that it was remodel
work. (UMF No; 13 ) Plaintiff. does not know if he worked i in the new or the old part of the

: building, (UMF No. 14. ) Plaintiff saw electricians on every one of the ten days. he was at the |

Mills Building, ‘though he. does not recall Wit they w were the same electricians. or different =
electricians. (UMF No..15. J * :
: “Plaintiff saw. MCCLURE ELECTRIC electricians every day that he ‘was. at. the Mills
Building. (UMF No. ‘16. ) MCCLURE ELECTRIC w was working i in berooms, hanging Pipe. :
2 23 :

MCCLURE ELECTRIC. INC.S. MEMORANDUM OF POINTS AND AUTHORITIES
OS IN SUPPORT ‘OF. irs MOTION FOR SUMMARY JUDGMENT °on unistruts! to connect the lights or running to fixtures. (UME No. 17.) To hang pipe, :
MCCLURE ELECTRIC hung unistruts with clamps from the. ceiling with rebar, -(UMF No. :

18.) Plaintiff recalls that the ceiling was cement, and that MCCLURE ELECTRIC scraped
off fireproofing first and was shooting studs into the ceiling. (UMF. No. 19.). To shoot the
studs into the ceiling, MCCLURE BLECTRIC used a stud gun. (UMF No. 20.) Most of the
time, MCCLURE ELECTRIC hung their pipe.on.unistruts, though occasionally they ran it
over another ‘pipe. or over.a duct. ‘(UMF No. 21) Plaintiff cannot recall how many times he
saw MCCLURE ELECTRIC shooting into. the ceiling to hang) unistruts. (UMF No. 22. ).
Plaintiff does not know when ‘the fireproofing that he claims that MCCLURE

ELECTRIC disturbed was installed. (UMF No. 23. ) Plaintiff does not now the brand or.”

manufacturer of any fireproofing type material that he claims that MCCLURE ELECTRIC.

disturbed. (UMF ‘No. 24.) Plaintiff described material that he. labeled as fireproofing at the |
Mills Building ‘as being grey and looking like oatmeal. (UMF No, 25.) Although he.

personally never. installed. fireproofing, plaintiff ‘believes that. such fireproofing -material
contained asbestos because he - feels ‘that che‘ knows the. difference between asbestos
fireproofing and non-asbestos fireproofing. (UME No. 26.) :

° Plaintiff does not know. the names of any MCCLURE ELECTRIC employees he :
: claims worked at the Mills Building and he does not recall speaking with any of. them. (UMF.

No. 27.) Plaintiff does not recall any job other than the Mills Building where he saw
MCCLURE ELECTRIC at the job with him. (UMF No. 28. ).
Plaintiff testified that he does. not know of any. documents. that would reffesh his

recollection regarding MCCLURE ELECTRIC. (UMF No.:29.) ‘When asked if there are any .

persons who. might refresh his ‘memory regarding MCCLURE ELECTRIC, plaintiff testified

that Robert Cantley came by one day ‘on one of. the jobs at the Mills Building, though he >
cannot recall when or which job. In response ‘to subsequent written discovery asking for. all.
witnesses in support of his claims against MCCLURE ELECTRIC, Plaintiffs do not identify :
Wr. Cantley. as a witness. “(UME No. 30), Several months ‘after. plaintiff's deposition

|| concluded, in response to.an interrogatory request for all witnesses in support of his claims :

1 ‘A strut channel, ‘often referred to colloguilly by onc of soveral manufacturer rade names, including

"Unistrut", isa standardized formed meta strctral system used in the constuction and clerical indies fr :

ght erecau mpc.
4

. MCCLURE ELECTRIC, INC.’S MEMORANDUM OF POINTS AND. ‘AUTHORITIES
aN, SUPPORT. ‘OF 118. MOTION FOR SUMMARY. JUDGMENTagainst MCCLURE ELECTRIC, Plaintiffs identified only Robert and Jean Ross... (UMF No.
32.) . “Although asked, Plaintiffs! ~ Responses to. MCCLURE -ELECTRIC’s "Special
Interrogatories and Requests for. Production of Documents do. not identify any. specific :
documents. supporting Plaintiffs contention that he was exposed to asbestos by: MCCLURE mS
ELECTRIC. (UMF No. 33.) :
D. _DECLARATION OF CARY HEDMAN: CHIEF ENGINEER AT ‘THE MILLS

: BUILDING

» Cary Hedman i is the Chief Engineer at the Mills Building and he has worked at the
Mills. Building for approximately thirty : (0) years, - for, fifteen (15). years as-a Building
Engineer (Journeyman) and. as the Building’s Chief. Engineer since 1998. -(UMF No. 35.

The Mills Building was built.in five phases; ‘all of the sections are similar with

slightly. different types of. construction, (UME No. 36.) The original building slab is hollow: :

clay tile witha non-asbestos finished plaster ceiling application that provides fireproofing for.
structural steel. (UME. No. 37. ) The remaining four ‘phases of the Building’ 's construction igs

on concrete slab with additional concrete encasing exposed steel for  reproofing (UMF No.

38: )
: “As the Building’s 'S Engineer, Cary Hedman has worked or overseen construction for
every space in the building. _(UME No. 40.) Since 1987, Building Engineer Cary Hedman

[has been: directly involved with ail construction. projects and he. has not seen.or. encountered :

any ‘asbestos containing fireproofing, or spray-on fireproofing. of any kind at The Mills
Building. (UMF No. 39.) As the Building’ S Engineer, Mr. Hedman has reviewed plans for :
the Mills Building going back to its “original 1892 construction, Based ‘on, the plans. and

extensive personal observation, there is not,.and never has ‘been, any asbestos containing or

: spray-on fireproofing used anywhere i in The Mills Building. (UMF No. “41,). ‘There i is. no

central modem HVAC system in: the Mills ‘Building. ‘Heating is Provided by. steam for :
radiators. and ventilation i is from ‘operable windows, and as such, there i is ‘no duct work: for ~

: these systems in any section of the Mills Building, (UME No. 42. J

‘The Mills Building i is currently undergoing some renovations and Mr. Hedman took ~
photographs ‘of ‘the ceilings of some of those opened spaces to illustrate that the ceilings i in all
parts. of the ‘building were ‘either concrete or. ath and - 1 plaster without . any. sprayed :

5 : .
S MCCLURE ELECTRIC, INC'S MEMORANDUM OF POINTS AND AUTHORTIES me
: IN SUPPORT OF ITS MOTION FOR SUMMARY. JUDGMENT.fireproofing. (UMF No. 43.) Mr. Hedman also took a photograph of-a San Francisco

Chronicle news article, dated October. 13, 1896, found in the Mills Building law library,

which describes the construction Of the oldest part of the Mills Building, including how the

hollow terra cotta tile serving as fireproofing for the building. (UMF No. 44.)

~ Plaintiffs’ only asbestos exposure claim against MCCLURE ELECTRIC is. that
MCCLURE ELECTRIC. disturbed some material on ceilings 1 near where he was working at
the Mills Building. Plaintiff characterized that material fireproofing, cand ‘he said in his
deposition that the material contained asbestos. However, this claim suggests that Mr. Ross

is confused or conflating } his memories regarding MCCLURE ELECTRIC with, those of other .
defendants. Regarding McClure work, Plaintiff-1) does not know ‘the brand or manufacturer ..-

of any disturbed material; 2) he does not know. when that material might have been installed;
and 3) has never installed any: fireproofing material himself. . : :

The Mills Building i is now over 100. years old, and « even at the time e plaintiff was °
there, much of the building was more than 70 year old. Plaintiffs ambiguous description and :

characterization of the material being disturbed could apply to seventy year old Plastering or or.
dirt ‘encrusted bricking or cement, put up one, two, three or even four generations before.

“We know ‘from the long. time building engineer, Cary Hedman, that whatever the —
material was, that Ross saw being disturbed, it.was not spray-on fireproofing because the ~ :
building has never. - contained asbestos or spray- on fireproofing of any kind. ‘To date, plaints? .
has ‘produced no admissible evidence linking MCCLURE ELECTRIC to plaintiff Robert

Ross's alleged : asbestos 5 XOSUTES, (MF No..49. )
mm _ ARGUMENT :

: ~ Summary Judgment i isa useful tool i in the effort: to. preserve judicial | economy. . ott
provides courts “with a mechanism to cut through the parties” "pleadings i in order. to determine :
whether, despite. their allegations, trial i is in fact necessary to resolve their dispute.” “Aguilar :
» Atlantic Richfield Co. (2001) 25 Cal.4th: 826, 843. This precisely describes the instant

action... Plaintiffs’ case -consists of very limited allegations with no factual or evidentiary .
support, there are no disputed i issues of material fact, and a tial i is not necessary: to resolve
5 this diaper in MCCLURE ELECTRIC's favor. : 2S :

6: :
"MOCHURE ELECTRIG INC'S MEMORANDUM OF POINTS AND AUTHORITIES
S IN SUPPORT OF TTS MOTION FOR SUMMARY JUDGMENTA. LEGAL STANDARD

“Any party may move for summary judgment i in any ‘action or proceeding if it is |
contended that the action has no merit.. Cal. Code Civ. Proc. § 437c (a). To establish that
an action has no Toerit,, the moving party must first show “that ‘one or more elements of the
cause of action, even if not separately pleaded, cannot be established. ” Cal, Code Civ. Proc, -
§ 437¢ (p)(2)s See also Aguilar v, Atlantic Richfield Co, (2001), 25 -Cal.4® 826, at 850 (the -
moving party bears the initial burden of production). If a defendant makes such a showing
the burden of production then shifts to the plaintiff. : :

“Once the moving- -defendant shifts the burden. of. production, “the opposing party is

: then subjected toa burden of production of his own ‘to.make a prima facie showing of. the

existence of a triable i issue of material fact.” ‘Aguilar, supra, 25 Cal.4th at 850. The plaintiff
“may not rely upon the mere allegations or r denials of i its pleadings to show that a triable issue
of material fact exists but, instead, ‘shall set forth the specific facts showing that a triable :
issue of ‘material fact exists as to that cause ° of action or a defense thereto.” Cal. Code Civ. :
Proc. § 437c (pX2). . :

A defendant needs to show that the “plaintiff cannot establish at least one element of :
the cause of action.” Aguilar, 25 Cal. 4th at 853. However, i in accordance with the standard. :
set forth regarding “summary judgment in federal law, ‘the ‘defendant is “not. required to

“conclusively. negate an. element of plaintiff's cause. of action, ” Id.; ‘see also Scheiding v. :
Dinwiddie Construction ‘Co. (1999) 69 Cal.App.4th 64, 70. Once it has been demonstrated
that a cause of action cannot be established, the burden shifts to. the. plaintif? to-set forth
specific facts to prove the. existence of a triable i issue. ! Cc. P.; -§.437e(p)(2), Union. Bank v.
Superior Court (1995) 31 Cal. App. 4th $73, 590 (disapproved on other grounds). Itm s be oS
noted that a plaintiff may not rely upon the mere allegations or denials of i its pleadings to

: show that.a triable i issue of material fact exists, ‘but instead shall set forth: the specific. facts

showing thata triable i issue of. material fact exists as to the cause of action or defense. Lopes
v. University. Partners (1997) 54 Cal. App.-4th 1117, 1122... . : :
: MCCLURE ELECTRIC can -successfully shift ‘the burden of production to Paints :
by citing Plaintiff's own swom | deposition testimony. and: Plaintiff's factually devoid. 4
discovery responses, Plaintiff cannot produce any. witnesses, documents or r other evidence in
>: oS

-MCCLURE HECTIC INC.'S MEMORANDUM OF POINTS AND. AUTHORITIES .
ase IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT‘ -support of his causes of action, Instead Plaintiff attempts to distract the court and to relies
: upon. attorney-crafted discovery “responses which are filled ‘with conclusory statements.
regarding. the. asbestos content. of various ‘materials. : However, there is no. competent
|| evidence that plaintitt was actually exposed, to any asbestos as a result of activities ‘of
MCCLURE ELECTRIC. - oe

: Plaintiffs claim that- Robert Ross worked n near MCCLURE ELECTRIC at only one. -
: job location: “the Mills Building i in San Francisco, California, for'a ‘total of ten (10) days :

between. 1967 and 1972. At the Mills Building, plaintifis claim that MCCLURE ELECTRIC ay

disturbed -spray-on fireproofing. However, there i is no ‘spray-on fireproofing i in the ‘Mills...
Building. Instead, the original building utilizes non-asbestos. finished plaster. applied to ‘the -

ceiling to provide fireproofing for the structural ‘steel; and the remaining four phases of the
Building’ s construction are concrete slab with additional concrete encasing exposed steel for

a fireproofing, Any claim that material disturbed was asbestos containing fireproofing | or.

indeed fireproofing of any “kind is based on incompetent Iny testimony and should be
disregarded. ~ : a
"Plaintiffs ‘attempt to. 0 muddy t the waters, “but ‘the fact Temains that MCCLURE -
ELECTRIC did not, and could not have, disturbed sprayed asbestos-containing fireproofing
at the Mills Building, because there was none present anywhere at the Mills Building.. oAt :
most, MCCLURE ELECTRIC shot studs into the cement ceiling and used metal unistruts; SS
clamps ‘and rebar. bo Ns : :
B. ‘PLAINTIFES CANNOT PROVE EXPOSURE, A NECESSARY ELEMENT To
EACH CAUSE OF ACTION ‘ALLEGED AGAINST. THIS DEFENDANT oes
: “An asbestos plaintiff bears the burden. of proving ‘that he was “exposed to dangerous
[asbestos} fibers from a product produced, distributed or installed bya particular defendant. Poo
Rutherford vy. Owens Hingis, Inc. (1997) 16 Cal. 4a 953, 975; MeGonnell v. Kaiser Gypsum
= (2002) 98 Cal. App: qe
: MeGonnell, Id; Dumin v.. Owens- Corning Fiberglas Corp. (1994) 28 Cal. ‘App: 4 650, 655. :
| Hf the: plaintiff i is unable 10 satisfy his. burden of. proving that he was exposed to defendant's :
asbestos-containing product, -gurmmary judgment. should be aed ® ‘for ‘the defendant.” os
McConnell, supra, 98. Cal. aL AD: 4 at 1105-1 106. oes = oes
a

1098, 1103. If there i is no evidence of “exposure, there i is no causation. .

2 "NCCLURE RECTAN INC.'S MEMORANDUM OF POINTS AND.AUTHORITIES -~
: IN SUPPORT OF Ts MOTION, FOR SUMMARY JUDGMENT :In McGonnell, the court upheld summary judgment in favor of defendant because
plaintiffs were unable to present evidence of causation, without speculation, that the decedent :
might have been exposed to the manufacturers? products that might have contained asbestos.
The MeGonnell court held that a mere possibility . of exposure is not enough, to. ‘establish :

-|| causation-when the evidence creates only. a “dwindling stream of probabilities that narrows

into conjecture. ”- Id. at 1105. (quoting Lineweaver v. Plant Insulation. Co. 1995) 31
Cal. App.4th 1409, :1415- 1416), In Dumin, the court held as “nonsuit or. - directed verdict i is:
appropriate. where plaintift's proof raises nothing ‘more than speculation, . ‘suspicion or

conjecture." “‘Dumin at 654. Dumin concluded that it would require an impermissible "stream : :

of conjecture and surmise" to. conclude that a defendant whose insulation products were ata °
shipyard at the general time when a stip that the Plaintiff served on was also at the e shipyard :
for repairs. Dumin 28 Cal. App. at 657. : : :
aL Plaintiff's Deposition Testimony Fails to Establish ‘Asbestos Exposure :
"from Any Act or Failure to Act by MCCLURE ELECTRIC
. Plaintiffs claim that MCCLURE ELECTRIC electricians exposed to him asbestos by i.
disturbing previously. sprayed asbestos-containing overhead fireproofing while setting pipe ~
and conduit: at the Mills Building. However, Plaintiff has. wholly failed to ‘present any :

evidence ‘that he was in fact exposed ‘to asbestos as.a result of MCCLURE ELECTRIC. :

Additionally, plaintiff has presented no credible evidence. that MCCLURE ELECTRIC ever. :
engaged i in. any conduct that affirmatively contributed to Plaintiff's alleged i injury, auch Jess

that any. alleged exposure was a substantial factor in plaintiff's alleged asbestos exposures,

He testified that he: saw MCCLURE ELECTRIC employees shooting studs into the cement .
ceiling, and he believes that they disturbed fireproofing, but he cannot. identify. the brand. or.
manufacturer of any. fireproofing they allegedly disturbed, nor when i it was installed.

A lay witness may only offer an. opinion that j is “rationally based on the pe r sption of :

|| the witness.” ” (Evid. Code $8002). If. a fact sought to be proved i is one “within the general -

knowledge of laypeople, expert testimony is not required, but if otherwise, the fact can be-
proved only by the opinions of experts. ‘Truman v.: Vargas (1969) 275 Cal App 2d 976, 982.00
= : In ‘this case, any opinion Plaintiff may. attempt to offer regarding the asbestos content
of any fireproofing material would. be inadmissible a as an incompetet Tay opinion. Plaintiff tiff

9

” MOCLURE ELECTRIC, INC'S MEMORANDUM. OF POINTS AND ‘AUTHORITIES Sone
“IN SUPPORT OF Ts. MOTION, FOR SUMMARY. SUDGMENTcareer insulator. The ability to divine the mineral content of debris that i is disturbed when a
stud. is shot into a-cement ‘ceiling bya neighboring contractor. is simply beyond any

Simply put, any opinion Plaintiff may offer as the conanosiion of spray: on fireproofing is not
admissible. -

MCCLURE ELECTRIC disturbed some material on ceilings near where he was working at
the Mills Building. Plaintiff characterized that ‘material fireproofing, and he said in his

is. confused or. conflating his. memories “regarding MCCLURE. ELECTRIC. with those of
: approximately 20 other defendants whom he claims disturbed ‘fireproofing i in his presence.
Plaintiff 1) does not know the brand. or. manufacturer of that disturbed material; 2) he does.
not know when that material might have been installed; and 3) has never ‘installed any
fireproofing material himself. * : :

‘The. Mills Building i is now over ‘100 years old, ‘and even at the time that plaintiff was
there, such of the building was more than 70 year old. Plaintiff's ambiguous description and

dirt encrusted bricking or cement, put up one, two, three or even four generations before. :

never contained asbestos or spray-on fireproofing of any kind.

has provided no admissible evidence that MCCLURE. “ELECTRIC. handled asbestos-

10.
MCCLURE ELECTRIC, INC, “S MEMORANDUM OF POINTS AND AUTHORITIES -
__IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT BES

| admitted that he personally never installed fireproofing, -To the contrary, plaintiff ‘was a
layperson’ S ability. Plaintiff has made no showing that he or any person has this ability. a
Plaintifis’ only asbestos “exposure ‘claim ‘against MCCLURE ELECTRIC is that

deposition that the material contained asbestos. However, this claim suggests that Mr. Ross...

characterization of the material being disturbed could apply to seventy year: ‘old plastering or 2

We know from the long: time building ‘engineer, Cary Hedman, ‘that whatever the | material . 4
was that Ross ‘Saw. being disturbed, ‘it ‘was not spray-on fireproofing because the building has -|

~Merely. ‘observing MCCLURE. ‘ELECTRIC employees perform work, without being. le
: able to specifically identify the brand, ‘manufacturer, or. date of installation, of any. alleged ~
spray-on fireproofing that MCCLURE ELECTRIC. allegedly handled is’ ‘not enough to. = a8
, establish exposure. - Rather, ‘this: is precisely ‘what the court in Dumin. described as an
impermissible : stream. of conjecture and surmise. Dumin, 28 Cal. App. at 657. Plaintiff must
show. that materials MCCLURE. ELECTRIC handled. were asbestos-containing and Plaintiff :

cantaining Sreproofng i in his | presence. ‘To the contrary, spray-on. Freprooting was not used :in the Mills Building. Based on the foregoing, this MCCLURE ELECTRIC has successfully
used Plaintiff's own swom deposition testimony to show that Plaintiff. ‘was not. ‘exposed to.

any asbestos by. employees of MCCLURE ELECTRIC. “MCCLURE ELECTRIC has thus

successfully shifted the. burden of production to Plaintiff, to Produce some evidence of.

asbestos exposure. oe oe :

ao: 2. Plaintiff's Responses to Written Dewey Fail to Present Avy Facts :
In Support. of His Allegations : : : te

S Plaintiff's responses to MCCLURE ELECTRIC's special interrogatories and request

|| for production of. documents are factually devoid of any evidence that Plaintiff was. exposed

to asbestos by. MCCLURE ELECTRIC and. are insufficient ‘to support any of Plaintiff's

- claims. ~ When a defendant’s discovery is sufficiently comprehensive, and a plaintiff's
responses so devoid of facts, this will lead to the inference that. the plaintiff could not prove

causation ‘upon a stringent review of the direct, “circumstantial: and inferential ‘evidence :

contained - “in: their -interrogatory answers. “Casey v. “Perini Corporation. (2012). 206
10).

asbestos by disturbing previously sprayed asbestos-containing overhead: ‘fireproofing while

| setting their pipe and conduit at the. Mills Building between 1967:and 1972.: However, :
: plaints do not and cannot identify the brand, manufacturer, or.date of instalation of the

spray-on fireproofing that MCCLURE ELECT RIC allegedly handled. -

oA plaintiff. may “not rely. upon the mere allegations or. denials of i its pleadings to show. :
that a 1 triable issue of material fact exists, Lopez, supra. at: 1122. Plaintiff provides self.
serving language, clearly. crafted by an attomey, discussing ‘the various properties of -
: asbestos-containing versus non-asbestos containing fireproofing, as well : a general history of oS
: fireproofing (See Plaintif's Responses to. “MCCLURE ELECTRIC's. Special Discovery; :
attached as Exhibits E and F to: Bacon Decl... However, this i is. not credible, admissible. ae
‘ evidence. This. is an’ example ofa. plaintif?s, responses’ to ‘defendant's comprehensive ps
6 discovery being so devoid of facts, that it Jeads to an inference that the plaintiff could not. :
prove causation ‘upon s a stringent Teview of the direct, circumstantial and inferential V idence °

il-

: MCCLURE ELECTUG "INC'S MEMORANDUM OF POINTS AND AUTHORITIES OES
~ - IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT. . ~

Cal. 4th 1222, 1231 (iting 4 Andrews v. Foster Wheeler LLC (2006)138 Cal.App: 4th 96 at :

- Plaintiffs claim: that MCCLURE BLECTRIC electricians 8 exposed to Robert Ross to ocontained i in their interrogatory answers. Casey, supra at.1231.

presence. ~ Plaintiff has absolutely no ‘knowledge regarding 1 the brand or supplier of. any
: fireproofing allegedly handled by MCCLURE ELECTRIC i in ‘his ‘presence. Additionally,
Plaintiff's Tesponses ‘provide little if any ‘substantive information, much like plaintiff's

by. Perini workers contained asbestos.” a Casey, 206 Cal. App. a at 1230.

witnesses who could testify to. the existence. of such a ‘triable. issue. » Plaintiff was
affirmatively asked i in MCCLURE ELECTRIC’ 'S special discovery requests, to identify 2 any

medical articles which. are ‘not specific to plaintiff's alleged exposures and thus, do not

- exposed.

19° || admissible evidence that MCCLURE ELECTRIC i is. linked to. plaintiff Robert Rose's alleged

judgment asa matter of: law:

2
~ MCCLURE ELECTRIC, INC'S MEMORANDUM OF POINTS. ‘AND AUTHORITIES -

SIN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT.

~ Plaintiff's discussion of this history of ‘fireproofing. does nothing to. support a :
conclusion that MCCLURE ELECTRIC disturbed any, asbestos ‘materials in plaintif?’s /

Tesponses provided i in Casey v v, Perini. In that case, the Court acknowledged that plaintiff's
answers assumed, “without evidentiary support, that the dust and debris allegedly disturbed

- plaintiff i is likewise unable to create. a triable issue ‘of material fact by identifying S

witnesses who could support his. claims. The only witnesses identified are Plaintifi Robert -
and Jean Ross. Plaintiff i is also unable to identify. any documents that could give tise to. ale
_|| triable issue of. material fact. Plaintiff identified several wholly. irrelevant scientific studies or ~.

- establish or r prove any work performed by MCCLURE ELECTRIC that caused Plaintift to io be :

. -PlaintifP's deposition testimony and _Tesponses ‘40. written, a discovery do not “identify
: facts or. documents Supporting his: claim that he was exposed 1 to asbestos as a result of. any
3 activity by. ‘MCCLURE ELECTRIC. Thus, plaintiff cannot meet his ‘burden to produce

| asbestos exposures by time, location, or ‘circumstances. ‘Because plaintiff: cannot establish:
the. necessary “nexus between’ plaintif?’s worksites and» asbestos containing materials “|e

: aasociated with MCCLURE ELECTRIC, ‘plaintiff cannot prove causation, As causation i isa: :
necessary. element of plaintiff's claim, MCCLURE. ELECTRIC is entitled to. summary :Cc PLAINTIFF CANNOT SHOW THAT ASBESTOS-CONTAINING
~ MATERIALS HANDLED BY MCCLURE ELECTRIC WERE A .
SUBSTANTIAL FACTOR IN CAUSING OR CONTRIBUTING To :
PLAINTIFF'S INJURIES. ~

- Plaintiffs must prove that “exposure ° to. asbestos due ‘to ‘products handled by

MCCLURE ELECTRIC. were a substantial factor in causing Mr. Ross's ‘colon cancer. In
Whitmire v Ingersoll- Rand Co. the court found that liberally construing plaintiffs’ ¢ evidence,

where plaintiff. worked in buildings ‘where defendant worked, the “most that could -be - .
{| concluded ‘is that. asbestos would likely have been found. in some of the. insulation in ~.

buildings 6 and 7, and that [Plaintiff] worked in those buildings. ‘Such evidence is simply not

“of sufficient weight to.support a reasonable inference of causation." Whitmire v. Ingersoll- :

Rand Co. (2010).184. Cal. App. 4th 1078, 1093. "The mere ‘possibility’ of exposure does not
create a triable i issue of. fact." id. (citing Andrews y. Foster Wheeler, (2006) 138 Cal.App.4th
96, 108). Liberally construing plaintiffs evidence, the most. that can be concluded is. that

asbestos would likely. have been found i in some of the insulation i in buildings 6 and 7, and that.
[Plaintiff] worked in ‘those buildings. ‘Such evidence is simply not "of sufficient weight to”

support a reasonable inference of causation." Whitmire at 1093 (citing, Dumin v,. Owens-
Corning Fiberglas Corp. (1994) ; 28 Cal.App.4th 650 and McGonneil.v. Kaiser Gypsum Co.
(2002) 98 Cal.App. 4th 1098, 1105). -It is not enough to “produce just some evidence. The
evidence must be of sufficient quality to allow the trier of fact to find the underlying fact i in

favor cof the party opposing the motion for summary judgment, Whitmire 184 Cal. App. 4th

1078, 1093,

~13

-Plaintift cannot ‘prevail against MCCLURE ELECTRIC without evidence that Mr. <
Ross was exposed to asbestos-containing materials associated with ‘MCCLURE ELECTRIC
J with enough frequency and regularity as to show a reasonable medical probability that this
exposure was a factor i in causing the plaintiff's ‘injuries. (Whitmire v. Ingersoll: Rand Co. sas
(2010) 184 Cal. App. 4th: 1078, 1085.) Assuming, arguendo, that Plaintiff's testimony is.
accurate and there i is actually spray-on fireproofing at the Mills Building, the most that can be
alleged. is that MCCLURE ‘ELECTRIC employees disturbed. fireproofing in plaintiff's :
Presence. over the course of ten days, split between three different projects, ‘Spanning the :
years of 1967 to 1972. Contrast this with plaintiff's career as an insulator, where he ‘worked o

MCCLURE ELECTRIC, INC.'S MEMORANDUM OF POINTS AND "AUTHORITIES
~ IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT.with or around asbestos-contaning fsuleting materials ¢ on a ‘daily basis. . * Such evidence i is.
simply not "of sufficient weight to support a reasonable inference of causation. m: Whiemire .
184 Cal. App. 4th 1078, 1093. : ee

“Dp. EACH OF PLAINTIFF'S CAUSES OF ACTION MUST FALL BECAUSE :

: TO ASBESTOS 5

he Plaintiffs’ Cause of ‘Action for. Negligence Fails as a a Matter of Law, as
~-" Plaintiffs have Failed to Raise a Triable Issue of Material Fact with
Respect to Causation, a | Necessary Hlceeent

: To ‘succeed on claim for negligence, Plaintiff must prove duty, breach, causation and
| damages. Leslie Gv. Perry ¢ & Assoc. , (1996) 43.Cal.App. 4th 472, 480. “To prevail on an

| action for negligence, Plaintiff ‘must: show that defendant owed a legal duty, that defendant. :
breached that duty, and that the breach was a proximate cause of plaintiffs i injuries. ‘Saelzler. :
vy “Advanced Group (2001) 25 Cal. Ath, 763, 767 (citing 4 Ann M. ¥. Pacific Plaza ee
Center a 993) 6 Cal.4th 666, 673-1 674). : :

-|| Cause ‘of Action for Negligence; Plaintiffs’ responses reiterate the information i in Plaintiffs"
Tesponses, to. standard. asbestos interrogatories, followed by over ‘ten pages of generic

documents, however, plaintiffs Present no admissible evidence which supports their claims.
: (UMF Nos. 45.) : : :

" Plaintifs claim for negligence fils asa matter of law ‘because there i is no evidence
that Mr. Ross was exposed to asbestos as a result of any activity of MCCLURE. ELECTRIC.
Furthermore, Plaintiffs fail to state any facts which support his contention that, MCCLURE :
: ELECTRIC acted negligently. Greenman ¥v. Yuba Power Products, Ine. (1963) 59 Cal.2d 57. :
Thus, MCCLURE ELECTRIC i is entitled to summary adjudication: on this i issue.

de ‘Plaintiffs’ Cause of Action for Strict. Products Liability Fails asa
: ‘Matter of Law, as Plaintiffs have Failed to Raise a Triable Issue of
"Material Fact with Respect to. Causation, a Necessary Element

Plaintiff has failed to establish a cause of action for’ Strict Products Liability as”
against MCCLURE ELECTRIC. To succeed ona claim of strict products liability where :
Plaintiff claims he was harmed by a product distributed, ‘manufactured or sold by Defendant,

S146

PLAINTIFF CANNOT PROVE THAT DEFENDANT EXPOSED PLAINTIFF |.

MCCLURE ELECTRIC requested that PlaintifE state all ‘facts i in support of Plaintiffs! oe

: ‘MOCLURE ELECTRIC, ING: "S MEMORANDUM OF POINTS AND AUTHORITIES ~
: IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENTPlaintiff must show that the product contained a manufacturing defect, or was s defectvely
designed or did not include sufficient instructions or warning of potential safety hazards and
that Plaintiff was injured as a result of such defect. or failure tc to.warn.. ‘Anderson v. Owens-
Corning Fiberslas Corp., (1981) 53 Cal. 3: 987, 994-! -995). . : os
"MCCLURE ELECTRIC requested that Plaintiff state all facts in support of Plaintifiy’

: Cause of Action for Strict Liability as against MCCLURE ELECTRIC; Plaintiffs! responses

reiterate the information i in plaintiffs Tesponses to standard asbestos interrogatories, followed

by over ten: pages of generic documents, however, plaintiffs present no 0 admissible evidence a

which supports their claims. (UMF No. 46).
Here, again, ‘the: element of. causation required to 9 make out a case of strict liability i is
lacking as Plaintiff has no facts, witnesses | or documents to support a finding that materials <

MCCLURE: ELECTRIC disturbed exposed him to asbestos, “As =e MCCLURE yoo

ELECTRIC: is entitled to summary adjudication on. this issue. .

3. Plaintiff Jean Ross's claim for Loss of Consortium Fails asa 1 Matter of.
Law, as Plaintiffs have Failed to Raise a Triable Issue of Material -
Fact with Respect to Causation, a Necessary Element. - wins

- MCCLURE ELECTRIC requested that Plaintiff state all facts i in. support of Plaintifis':-

Cause of Action for Loss of Consortium as against MCCLURE ELECTRIC; Plaintiffs |

responses. “reiterate the ‘information in- - plaints’ ‘Tesponses to: . standard : asbestos
interrogatories, followed by over ten pages ‘of generic documents, however, plaintiffs present
no admissible evidence which supports their claims. (UMF No. 47. Je :

: Plaintiff, Jean Ross! 's Cause of Action for. Loss of Consortium fails ‘as. a matter of. law :

because plaintiffs have no “evidence that plaintift Robert Ross. was. exposed to. asbestos- * : a

containing materials: disturbed by ‘MCCLURE ELECTRIC and there is “no evidence. of :

: causation. Thus, MCCLURE ELECTRIC i is entitled to summary adjudication on this i issuc. *

A. ‘Plaintiffs! Cause of Action for Premises Owner / Contractor Liability
Fails. asa Matter of. Law, : as Plaintiffs have Failed to Raise a Triable: :
“Issue of Material Fact with Respect to 9 Causation, a \ Necessary: :
Element :

oh order to ‘prevail, Plaintiffs. moust At satisfy the element of causation. | Lineweaver vy

Plant Insulation Co. (2995) 31 Cal-App. * 1409, 1414; Sindellv Abbott Laboratories casa) Jo

as.

~ MCCLURE TIRCTRIC, INC'S MEMORANDUM OF. POINTS AND. AUTHORITIES ”
oN SUPPORT. ‘OF ITS. MOTION: FOR SUMMARY: JUDGMENT :26 Cal.3d 588, 597-598. In that regard, Plaintiff must establish as a threshold matter that he
was exposed to asbestos-containing products as a result of the actions, or failure to act, by
MCCLURE ELECTRIC and that such exposure was a substantial factor in increasing the risk
that plaintiff would develop an asbestos related disease. .McGonnell v. Kaiser Gypsum
Company, Inc., (2002) 98 Cal. App.4th 1098, 1103-1104; Smith v. AC&S, Inc. (1994) 31
Cal.App.4" 77, 89 (disapproved on other grounds).

_. MCCLURE ELECTRIC requested that Plaintiff state al! facts in support of Plaintiffs‘
Cause .of “Action for Premises Owner/Contractor Liability as against. MCCLURE

|| ELECTRIC; Plaintiffs’ responses reiterate the information in plaintiffs’ responses to standard

asbestos interrogatories, followed by over ten pages of generic documents, however,
plaintiffs present no admissible evidence which supports their claims. (UMF No. 48.) As
such, MCCLURE ELECTRIC is entitled to summary adjudication on this issue. -
CONCLUSION

Plaintiffs have not and cannot prove that exposure to asbestos due to products
handled by MCCLURE ELECTRIC was a substantial factor in causing Mr. Ross's colon
cancer. Plaintiffs have failed to produce any admissible evidence during the discovery
process sufficient to link MCCLURE ELECTRIC to any of plaintiff Robert Ross's alleged
asbestos exposures. Plaintiffs have ‘thus failed to raise an issue of material fact regarding
causation in this case, entitling MCCLURE ELECTRIC to summary judgment with prejudice
as a matter of law. Therefore, MCCLURE ELECTRIC respectfully requests that the Court
grant its Motion for. SUMMARY “JUDGMENT. WITH PREJUDICE, - Altemnatively,
MCCLURE ELECTRIC requests that this court grant summary. adjudication on each and
every one of the i issues alleged against MCCLURE ELECTRIC i in plaintifis' Complaint.

Dated: February 2% 2013. os “) SINUNU BRUNI LLP

ES N.S)
“JUNIPER BACON
Attorneys for Defendant . ~

MCCLURE RLECTRIC, INC. -

16

~ MCCLURE ELECTRIC, INC.’ $ MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT: OF.ITS MOTION FOR, SUMMARY JUDGMENT